Medical Malpractice:

Proving Fault

There are a number of legal theories that can be used to establish liability is medical malpractice cases.

Negligence

The majority of medical malpractice lawsuits attempt to establish that the medical professional was negligent. There are four basic elements of a medical negligence claim, and the plaintiff's attorney must establish all four in order for the claim to be successful.

  • 1. A duty was owed.
    Whenever a hospital or health care provider undertakes the care of treatment of a patient, a legal duty to act reasonably and appropriately exists. This means that the medical professional is obligated to act within the standard of care.

  • 2. A duty was breached.
    If the medical professional failed to adhere to the relevant medical standard of care, the duty to the patient was breached. The standard of care is usually established by expert testimony.

  • 3. The breach caused an injury.
    It must be established that the breach of duty on the part of the doctor or hospital was a proximate cause of the plaintiff's injury. The plaintiff must establish that if the standard of care had been followed, the injury to the patient could have been avoided.

  • 4. Damages were sustained by the patient as a result of the doctor's mistake.
    If a medical professional makes an error but it does not cause any harm to the patient, there are no damages and the patient cannot sue on the grounds of medical negligence. The patient must have sustained damages in order to have the basis for a valid claim. Damages can be monetary or emotional in nature. Death, disability, deformity, additional hospitalization or surgery, and severe pain are among the damages that may be suffered by medical malpractice victims.

Negligent Prescriptions and Medical Devices

Aside from negligence in treatment, a medical professional may be held liable for negligence in the prescription of a medication or medical device. This is the case if injury to the patient occurs because he or she ignored the instructions of the manufacturer, or prescribed an incorrect medication or the correct medication in an improper dosage. There are times when pharmaceutical manufacturers may be at fault if a drug caused injury to a patient, but this is the case only if there was a failure to warn of potential side effects or dangers associated with the drug. However, in most cases, the physician who prescribed the drug is considered a "learned intermediary." That is, because of his or her professional medical knowledge, and the fact that he or she has received adequate information from the manufacturer, as a physician, he or she is in the best position to decide whether or not a specific drug or medical device is suitable for a patient. Consequently, it is primarily the duty of the physician to advise the patient as to the risks and potential side effects of a medication or medical device he or she prescribes.

Informed Consent

While details vary from state to state, patients have the right to full disclosure of the facts concerning their condition, treatment, side-effects, and prognosis in clear language that they can understand. It is only after this information has been presented that a patient can give informed consent. The failure on the part of a medical professional to obtain the informed consent of a patient with regard to a procedure or treatment is a type of medical malpractice negligence, and can even result in an action for battery.

Breach of Contract or Warranty

While it is not common, doctors sometime promise specific results from procedures or treatments. Failure to fulfill these promises may be grounds for an action for breach of contract or breach of warranty. This is more likely to occur in cosmetic surgery cases, where the plastic surgeon may promise a patient a certain result, and it can be clearly seen if the result is not obtained.

Problems of Proof

It should be noted that proving wrongdoing on the part of a health care professional is often quite difficult, and hiring an experienced medical malpractice attorney is the best way to ensure that your case is handled properly. One of the difficulties in establishing proof is the hiring of a medical expert. This is a person who practices in the same field as the health care professional being charged with misconduct, who must testify as to how the defendant should have handled treatment, under applicable professional standards of care. Often, medical professionals avoid testifying against one another.

Again, establishing a base for a medical malpractice lawsuit is difficult because the medical professionals charged with misconduct are usually the ones who write the reports that form the basis of the case. Because they are usually the only ones present and when the medical negligence happened; while they know what actually occurred, they may choose to describe the event in a manner not truly descriptive of what truly happened. Additionally, some health care providers may present their reports in order to protect someone guilty of misconduct.

However, despite these obstacles, or because of them, the law provides certain protections to the plaintiffs. If a medical injury occurs and the patient does not know the precise cause of the injury, but the injury could not have occurred without medical negligence on the part of the medical professional, he or she may invoke a legal doctrine known as "res ipsa loquitur." This means "the thing speaks for itself." In legal terms, it means that the plaintiff only needs to prove that a particular result occurred and would not have occurred but for someone's negligence. If this doctrine is invoked successfully, the burden of proof is shifted from plaintiff to defendant. That is, the plaintiff no longer needs to show how the defendant was negligent, but the defendant must now to prove that he or she was not negligent. In order to successfully invoke this doctrine, a plaintiff has to show:

  • 1. The actual cause of the injury cannot be established

  • 2. In normal circumstances, the injury would not occur without the negligence of someone

  • 3. The plaintiff did not cause his or her own injury

  • 4. Control on the instruments that caused the injury were exclusively in the hands of the defendant, or its employees or agents

  • 5. Only the instruments of the defendant could have caused the injury

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