To win a medical malpractice lawsuit, you must prove negligence on the part of your healthcare provider. In other words, you must prove that your healthcare provider acted in the wrong way, or failed to act in the right way.
How would a jury decide what is “right” or “wrong” when it comes to your healthcare treatment? By using an element called “duty of care” or “standard of care.” A bad outcome alone is not grounds for a medical malpractice suit, as long as the provider properly exercised “duty of care.”
The Physician/Patient Relationship
Duty of care begins at the creation of a physician/patient relationship, when the patient is present and the physician initiates diagnostic or treatment measures. Usually, it requires more than an initial phone call or email. The relationship continues until the need for care is completed or until either the patient or the physician actively terminates the relationship.
The Duty of Care Owed to a Patient
In a medical malpractice case, the question is whether the medical professional acted like any other reasonable medical professional with the same training, skill and competence would have acted in similar circumstances. The duty of care owed by family practitioner differs from the duty of care owned by a brain surgeon. Duty of care is measured by the norms at the time of the event or occurrence.
Failure to Meet Duty of Care
Next, a patient pursuing a medical malpractice claim must prove that the healthcare provider somehow failed to meet the applicable duty of care. If most doctors would have made the same diagnosis and followed the same course of treatment, it will be difficult to prove negligence by your doctor. The healthcare provider is not required to be the best, but simply “reasonably” skillful and careful.
Almost all states require the use of expert witnesses to discuss appropriate duty of care.
Failure to Meet Duty of Care Caused an Injury
A patient pursuing a medical malpractice claim must also prove that “more likely than not” the healthcare provider’s incompetence directly caused the injury. This can be difficult, since many malpractice cases involve patients who were already sick or injured to begin with. Once again, expert witnesses are called upon to testify. The harm must have been reasonably foreseeable.
The Injury Resulted in Damages
Even if a healthcare provider performs below the expected duty of care, a patient can’t successfully sue for malpractice unless the patient can prove that he or she suffered actual harm as the result of this breach of duty of care. Harm can include physical pain, mental anguish, additional medical bills, and lost ability to work or earn money.
Medical Malpractice Cases
In most jurisdictions, medical malpractice is a civil tort (not a criminal offense) heard in court, often before a jury. Healthcare providers who are found guilty may be responsible for the financial compensation of their victims. Many states cap this amount. They may also face professional consequences such as suspension from practice or revocation of professional licenses.
Call a Medical Malpractice Lawyer
The law surrounding duty of care, injury and harm in a medical malpractice case can be complex. Plus, the facts of each case and the law of each state will differ. This article provides a brief, general introduction to the topic. It is not legal advice. For more detailed, specific information about your specific situation, please contact a medical malpractice lawyer.