Proving a medical malpractice case

Physician or hospital negligence can have catastrophic and life-altering consequences for patients and their families. Proving a medical malpractice case for compensation may be complicated and must clear legal and evidentiary hurdles.

Malpractice occurs when a health care practitioner or facility injures a patient through negligence or an omission. Errors with diagnosis, treatment, aftercare or health-care management may constitute the negligence.

A negligence claim must have specific elements. First, there must be a violation of the standard of care. These are certain standards that are recognized by members of the health profession as being acceptable treatment by prudent health professionals under similar circumstances. Patients have the right to care that meet these standards.

A violation of this standard of care had to cause injury or harm to the patient. There is no case if there was an injury that was not caused by negligence.

There are several types of medical malpractice. These include failure to diagnose or making a misdiagnosis, incorrect interpretation or ignoring laboratory results. Malpractice includes surgical error, surgery at the wrong site or unnecessary surgery.

A physician may also be liable for improper medication or dosage, bad aftercare or follow-up or discharging a patient from care too early. Negligence also includes the failure to take a proper patient history or disregarding the history, failure to order correct testing and failing to recognize patient symptoms.

Cases may be costly, include time spent at depositions and hearings and the hiring of experts. Patients should consider whether the case is worthwhile by showing that they incurred substantial damages from the malpractice. If the damages are small, the cost of a lawsuit may exceed any compensation that the patient receives. Patients should be able to show that their injury led to disability, income loss, unusual pain, suffering, hardship or costly medical expenses.

An attorney can help determine whether a malpractice lawsuit should be filed and gather evidence. They can help pursue the right to compensation in legal proceedings and settlement negotiations.

Source: American Board of Professional Liability Attorneys, "What is medical malpractice?" Accessed Oct. 30, 2017

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