We rely on medical personnel for quality care and treatment, but mistakes are made every day. If a mistake is made, you can’t just file a lawsuit and obtain a settlement or verdict. You must be able to prove your case by a preponderance of the evidence. That can be a difficult burden of proof in a medical malpractice case.
Proving the elements
Medical malpractice laws vary from state to state, but there are some general elements that apply in most medical malpractice lawsuits. If you can’t prove each and every element, your case is destined to fail.
The physician and patient relationship
You must show that you were the patient of the doctor who you are suing. You’re not the patient of a doctor that you overheard giving medical advice at the table next to you in a restaurant. There must be an agreement that he or she is your doctor and you are his or her patient. This issue might get blurred in the context of a consulting physician like a radiologist who misread an x-ray image, but you would likely have a case if you can prove the elements of medical malpractice.
The doctor deviated from the standard of care
The standard of care is generally held to be the type and level of care that a reasonable prudent physician with the same training and experience would provide under the same or similar circumstances in the same community. A deviation from the standard of care is shown through the medical testimony of an expert. This expert would be a doctor who is trained and experienced in the same specialty as the doctor who you want to bring a malpractice case against. That expert must testify as to:
- What the standard of care was for your care and treatment
- How the doctor who you want to sue deviated from the standard of care
- How you were damaged by the deviation from the standard of care
A physician might make a gross deviation from the applicable standard of care, but the patient might not be harmed. On that basis, the case is likely to fail. There must be a specific injury that was caused by the doctor’s deviation. This can be another blurry area. For example, the doctor deviated from the standard of care, but the patient’s death was imminent anyway. If the patient was damaged by the doctor’s deviation, damages can be sought for:
- Past and future medical bills
- Past and future lost earnings
- Any permanent disfigurement
- Any permanent disability
- Pain and suffering
- Loss of a normal life
- Funeral and burial costs in the event of a wrongful death
Failure to diagnose or misdiagnosis
If a condition or disease is found early, it’s usually more treatable. Failure to order appropriate diagnostic tests, misinterpreting results and not following through with a patient’s complaints of pain or discomfort are common diagnostic errors. These are most often seen in the context of heart attacks and cancer.
These errors can be wide ranging. Surgical equipment or supplies might be left inside of a patent. Surgery might be performed on the wrong body part or even the wrong patient.
Medication errors might include prescribing the wrong medication or the wrong dosage. Due consideration must be given to a patient’s age, medical condition and any allergies.
Improper use of equipment or technique, breech delivery and depriving a baby of oxygen cause common birth injuries. All of these might leave a child permanently disabled. A serious financial and emotional burden can be placed on a family after a birth injury.
Medical malpractice cases involve complicated procedural and evidentiary issues. Compensating experts for their time makes them expensive to bring too.