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Proving Fault in Medical Malpractice Cases

Although doctors often are considered miracle workers, especially when they help patients escape early death or improve their quality of life, they're not perfect. More to the point, we cannot expect doctors—regardless of their experience or skill level—to "fix" all of our maladies without fail. However, we can indeed expect doctors to perform at a certain level of proficiency and professionalism. So even when a patient dies, the attending physician may have met or even exceeded the care that a similarly capable doctor would have provided.

But when a physician fails to meet this standard of care, and it results in an injury to the patient, that patient may seek damages for medical malpractice. There are a limited number of ways to prove medical malpractice, all of them based on whether the doctor exercised the proper standard of care.

See FindLaw's main Medical Malpractice page for additional articles and resources.


Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:

  • The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);
  • The applicable standard of care, and the health care professional's deviation from that standard, which is deemed a breach of the duty owed the patient;
  • A causal relationship between the health care professional's deviation from the standard of care and the patient's injury;
  • Injury to the patient.

To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.

Negligent Prescription of Medications or Medical Devices

A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer's instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

Informed Consent

In many situations, the failure to obtain a patient's "informed consent" relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.

Breach of Contract or Warranty

Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure, and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Problems of Proof: The "Res Ipsa" Doctrine

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.

Fortunately, the law recognizes that plaintiffs face certain difficulties in proving medical negligence. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as "res ipsa loquitur." Translated, this Latin phrase means "the thing speaks for itself," and implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone's negligence.

Once this doctrine is successfully invoked, the burden is not on the plaintiff to show how the defendant was negligent, but on the defendant to show that he or she was not negligent. To invoke this doctrine successfully, a plaintiff has to show that:

  1. Evidence of the actual cause of the injury is not obtainable;
  2. The injury is not the kind that ordinarily occurs in the absence of negligence by someone;
  3. The plaintiff was not responsible for his or her own injury;
  4. The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and
  5. The injury could not have been caused by any instrumentality other than that over which the defendant had control.
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