Proving Fault

Most cases of medical malpractice involve a medical professional being negligent when treating a patient. In order to prove that a medical professional was negligent, a person must prove the following:

  • That the medical professional had some sort of a duty owed towards the patient. This means that you have to prove that there was in fact a doctor-patient relationship.
  • That the medical professional offered a standard of care that is lower than the patient could reasonably expect to find elsewhere.
  • That the doctor was the actual person who caused the patients injury. You have to make a direct correlation between the doctor’s actions and the injury suffered.
  • Finally, you have to prove that there is some sort of injury. You cannot find a doctor guilty of malpractice if no injury occurred. This is true even if the doctor made a mistake.

To find a medical professional negligent it has to be proven that their conduct fell below a certain accepted level of medical care. This precedent is set by other doctors who have similar experiences. Usually an expert witness has to be called in to corroborate the fact that a certain standard of care was not reached.

Prescription Errors

Your doctor can be held liable for medical malpractice if he prescribes a medication or medical device without fully reading the instructions or prescribing the wrong amount. If you suffer an injury from such actions, it is a case of medical malpractice. If a drug company fails to notify its consumers of potential side effects from taking its drugs, and they suffer from injuries, they may also be held liable for medical negligence. Most of the time it’s a doctor’s responsibility to use his medical knowledge to prescribe appropriate medications or medical devices for patients and warn them of any risks associated with them.

Informed Consent

If there is a situation where a medical professional fails to obtain a patients “informed consent” in relation to a procedure or treatment, it can be construed as a form of negligence. Informed consent basically means that the medical professional is obligated to inform the patient of all benefits, risks, and alternative treatments. The doctor must also obtain the patients signature.

Breach of Contract or Warranty

Doctors do not typically promise results from a procedure or treatment. If they do, and the results are not obtained, the doctor may be liable for breach of warranty. If this happens and a patient is not satisfied they may be able to take the medical professional to court for breach of warranty.

The Burden of Proof

It isn't very easy to establish proof that a medical professional is guilty of malpractice. Proof requires considerable evidence as well as testimony from expert witnesses that can attest to the level of service which the medical professional offered. Medical malpractice can also be hard to prove because the medical professionals have written the reports that are being used against them.

Some medical professionals may set up their reports in a way that would make it hard to prove medical negligence. Fortunately, a plaintiff in a suit against a medical professional can induce a legal doctrine known as “res ipsa a loquitar” which allows him to show that a particular injury would not have occurred had the medical professional not been negligent.

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