A medical malpractice lawsuit should only be brought if you can meet the burden of proving three things: 1) negligence, 2) causation, meaning that the specific negligence caused damages, and 3) that there are substantial damages.
Medical Malpractice or Negligence
Medical malpractice occurs when as a result of negligence by a health care provider, a patient sustains injury or death.
In this content, negligence means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession. This must be proven through testimony of expert witnesses who establish the applicable “standards of care” and explain how the health care provider deviated from those standards. For example, physicians have a duty to take an adequate medical history, to do a proper examination and order necessary laboratory studies, to properly interpret and advise about test results, to engage in thoughtful differential diagnosis of signs and symptoms, to disclose significant risks and obtain informed consent from patients, to give treatment only for proper medical reasons, to prescribe correct medications and provide proper follow-up, to obtain appropriate consultations, and to provide patients with current therapy and treatment options.
A bad result does not necessarily mean that malpractice occurred. Though recent studies suggest that medical errors cause many more injuries and death than originally thought, medical malpractice occurs only in those cases where a medical provider breached a standard of care to the patient. Furthermore, it must be established that the breach of that standard of care caused the injury to the patient. It is not enough to show that a mistake occurred and that a patient was injured, or sustained a poor outcome. For more information on the frequency of medical treatment errors, see our malpractice study page.
Even though a person may be able to establish that there was malpractice does not mean that the malpractice will lend itself to the filing of a lawsuit (litigation). This is because the injured person must also establish that there was an injury, loss or damage that was caused by the malpractice. It is important to understand that a poor result, a non-successful result, or dissatisfaction with a result of a medical procedure is not, by itself, proof of malpractice or the basis of a claim. Medical treatment or procedures do not come with a guarantee that the doctor will produce the result desired.
Negligence must be proven through the use and testimony of expert medical witnesses, because typically the issues involved are beyond the knowledge of the ordinary jury. The doctor, or his or her lawyers, will hire their own experts to defeat the case. A judge or jury must then decide which experts offer a more credible explanation for the doctor’s conduct, and whether it fell below the “accepted” standard of care required under the circumstances.
The Causation Defence “Causation” is an important legal principle which means in the practical effect that the injured party has the burden of proving a direct connection between the negligence act of the health care provider and the injuries and damages claimed. Many malpractice cases are defended on the ground that there is no causal relationship between the claimed damages and the alleged negligence. This is sometimes referred to as the “so what” defence. It is simply not enough to prove that a physician has fallen below the standard of care. It is necessary to show that the departure from acceptable practice led to the injury. It must be shown that the malpractice caused the injury. Defence lawyers and the experts they hire are very skilled in offering explanations to “prove” that the injury or medical result was caused by some other event. In fact, in many cases, the defence often claims that the injury or medical result would have occurred regardless of the doctor’s actions or inaction. Sometimes the defence can even agree that malpractice was committed, and then offer, “so what?” Again, this issue becomes a “battle of the experts” and the trier of the facts is left with making the ultimate decision. This is often the battleground around which malpractice cases are fought.
Once again, expert witnesses are necessary to establish the causal connection between the malpractice and the damages. Even where the conduct of the physician cannot be justified, an expert may be willing to say that the negligence didn’t make any difference; and that the injury would have occurred whether the negligence occurred or not.
Should You Sue?
Most people who come to us have both a poor treatment outcome and an unsatisfactory explanation of the reasons (or no explanation at all) from the health care provider. A poor outcome, of itself, is not evidence of medical negligence. An investigation of the true facts is necessary before we can say if you have a case. There are many explanations for poor outcomes unrelated to negligence. Sometimes conditions are not easily treatable and treatment simply fails. Doctors are not guarantors of results of even the best therapy. Sometimes treatment, like surgery or chemotherapy, carries a risk of complications, like infection, for example. If a person has been properly informed of the risks, and given consent, health care providers are not liable for the known complications of treatment. Where more than one treatment option is available and acceptable, and the option chosen either does not provide a cure or causes a complication, the health care provider is not responsible. This is called an error of judgment, and is not negligence. As mentioned earlier, in some cases, the health care provider may, in fact, have been negligent, but the negligence may not have caused significant injury, and we might not recommend that a case be pursued. There are also some cases where there is clearly negligence that caused injury, but the damages are not sufficiently severe to justify the response of a medical malpractice case. Damages must be proven. That is, assuming that negligence resulted in an injury, what damage has occurred and how is it measured? Once again, experts are often relied upon to prove these matters.
The Medical Malpractice Case Evaluation
We begin with an initial investigation of your case. We first take a detailed history from you or your family and then decide whether the case is one which falls within our expertise and interest. We also determine whether your damages will make bringing an action worth while. This is followed by the collection of all pertinent medical records directly from the health care providers. We review and analyze the records to determine what happened and identify issues relating to the standards of medical practice. If we suspect here is a significant possibility that medical malpractice occurred, we will provide your records to appropriate experts for review, asking them for their opinions on the issues of negligence, damages and causation. Often these experts must come from other cities or jurisdictions as local experts to not wish to testify against their colleagues. The financial arrangements for investigations are determined on a case-by-case basis. For more information see our medical malpractice case evaluation page.