Proving Fault in Medical Malpractice Cases

Establishing wrongdoing on the part of a health care provider is often difficult. After all, the defendants write the medical reports that form the basis of the lawsuit.

Proving a doctor's negligence often requires hiring expert witnesses. Experts must testify about the doctor's negligence and what the doctor should have done under applicable professional standards.

There are a few different types of medical malpractice. Each claim depends on whether the doctor exercised the proper standard of care. This article discusses how to prove fault in the most common medical malpractice claims.

Negligent Medical Treatment

Most medical malpractice cases bring a negligence claim. The claim states the medical professional was negligent during a patient's medical treatment.

To establish a doctor's negligence (or negligence by another medical professional), an injured patient (the plaintiff) must prove:

• The doctor owed a duty of care to the patient (proof of a doctor-patient relationship or other client relationship)
• What the proper standard of care was for the situation
• The health care professional's deviation from the standard of care (breach of duty)
• The health care professional's breach of duty caused the patient's injury
• Personal injury to the patient

In a medical malpractice lawsuit, the plaintiff must show that the doctor's conduct fell below an accepted standard of medical care. A plaintiff usually presents testimony from a medical expert to establish the standard.

An expert witness should be qualified in the same area of medicine as the defendant. The expert knows the common standard of care used by doctors. The expert witness will look at the medical records and the patient's medical condition to determine if the doctor made the right choice.

The plaintiff will present expert testimony to show the defendant did not meet the standard.

Negligent Prescription of Medications or Medical Devices

A medical professional may be liable for negligent prescription of a medication or medical device. A medical professional may be liable if they ignore the manufacturer's instructions. Or if they prescribe an incorrect medication or dosage, which leads to a personal injury.

A pharmaceutical manufacturer may be liable for product liability. This is a claim used if a drug injures a patient. A patient has a good claim if the manufacturer fails to warn of potential side effects or dangers of the drug.

In most cases, the prescribing physician is a learned intermediary. A learned intermediary is a person or physician with superior medical knowledge and adequate information from the manufacturer. A learned intermediary has the best position to determine whether a particular drug or device is appropriate for a patient. If the pharmaceutical company shows that the physician knew the risk, it cannot be held liable for negligence.

The physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device prescribed.

Lack of Informed Consent

A doctor is negligent if they do not get a patient's informed consent before administering a procedure or treatment.

The patient may also have a claim for battery. The specific definition of informed consent may vary from state to state. Informed consent generally means a physician (or medical provider) must tell a patient everything, including:

• All potential benefits and risks of treatment
• Alternative surgical procedures, medical procedures, or courses of treatment

A medical provider needs a patient's written consent before proceeding.

Res Ipsa Loquitur

The law recognizes that patients have certain difficulties in proving medical negligence. Sometimes, a patient does not know what caused their injury. If the injury could not have happened without a health care provider's negligence, the patient may invoke "res ipsa loquitur."

Res ipsa loquitur is Latin for "the thing speaks for itself." This means the patient only needs to show that an injury would not have happened if the doctor had not made a mistake. This doctrine shifts the burden of proof from the patient to the doctor. After the shift, the doctor must show that they were not negligent. To make a claim based on res ipsa loquitur, a plaintiff must show:

• The injury is not the kind that ordinarily occurs in the absence of negligence.
• The plaintiff was not responsible for their injury.
• The defendant and its employees or agents had exclusive control of the instrumentality that caused the injury.
• The injury could not have been caused by any instrumentality other than the defendant, who had control.

For example, a doctor's failure to remove surgical sponges from a patient's body post-surgery may result in a case that uses res ipsa loquitur.

Get a Claim Review From a Medical Malpractice Attorney

If you or a loved one think you may have a medical malpractice claim, it's important to act quickly. Medical malpractice claims have a statute of limitations (time limit) on when you can bring a claim. Every state has different time limits.

If you do not know whether your claim meets the statute of limitations, you should contact a medical malpractice lawyer for legal advice.

Experienced attorneys in medical malpractice law routinely handle medical malpractice cases and personal injury cases. They will be able to evaluate your case and help you file a legal action to recover money for medical bills and injuries. The first step in finding legal advice is to contact a medical malpractice attorney in your area.