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Four Burdens of Proof for Medical Malpractice

Submitted by jrlaw on May 5th, 2010

Medical negligence or malpractice cases are complicated. They require excellent technical skills in the field of medicine for malpractice law firms to be able to win a case for their clients. In order to win a case, the lawyer must prove four things in court:

• The doctor owed a duty towards the patient

• The doctor breached this duty

• The breach caused Injury to the patient

• There were damages due to the injury

The above are also considered the four elements of medical malpractice.

Four Elements of Medical Malpractice

Duty owed: When a doctor or hospital treats a patient, a legal duty is created. This duty starts as soon as the doctor begins to provide any service to the patient, which includes medical counseling. If the claimant fails to show that there was an active doctor-patient bond during the time of the injury, his or her case becomes baseless. This is the very first step in making the case strong. If the lawyer fails in this, there is not much hope that you can get medical malpractice damages.

Duty breached: In such cases, breach of duty means that the doctor or hospital failed to meet the medical standards of care during the time and place of the injury to the patient. The standards are set up by expert testimony. In cases of retained surgical tools after surgery or cases of burns from incorrect application of surgical electrocautery pads, where the carelessness is apparent, the doctrine of “res ipsa loquitor” (which means “the thing speaks for itself”) is used. This mitigates the requirement of expert testimony for medical malpractice claim.

Injury due to breach: The claimant has to demonstrate that it was the breach of duty that caused the injury. To put it in other words, the medical malpractice lawyer must prove that it was the doctor’s carelessness that led to the injury to the patient. But, it’s easier said than done. It’s quite tricky to prove causation.

Damages done: Damages refer to the calculated monetary amount that can compensate or is equivalent to the injury or loss caused to the patient on account of the negligence. Unless the damages are sustained by the injured patient, the claim is baseless, irrespective of whether the doctor was negligent or not. However, an expert medical malpractice attorney would tell you that showing a certain degree of emotional suffering or pain in cases of non-economic damages may give a chance to the claimant to claim damages. There are three kinds of damages in physician malpractice: punitive, direct and indirect.

• Punitive damages can be claimed when the conduct of doctor was intentional or totally careless. For example, completely avoiding the care of a patient or deliberately not giving him or her proper care.

• Direct damages include present and future medical expenditure, and lost earnings caused due to the injury.

• Indirect damages include the pain and suffering undergone by the injured patient as well as the emotional trauma caused due to the carelessness of the doctor. It also includes loss of “consortium,” or the loss of ability to have sexual relations with one’s partner or of the future reproductive abilities of either sex.