Proving Medical Malpractice Claims

Proving Medical Malpractice Claims

By Len Zandrow, NSCIA General Counsel

When serious injuries occur or are exacerbated during the course of medical treatment, those persons so affected may consider bringing a medical malpractice claim. This article identifies some of the requirements for successfully prosecuting such a claim.

Medical malpractice claims are among the most complex and costly to pursue in personal injury law. In order to succeed, a plaintiff must ultimately prove four elements: the existence of a duty of care, the breach or violation of that duty, damages, and a causal connection between the breach involved and the resulting damages.

Typically, the existence of a duty of care, the first element, is the easiest to prove. Health care providers generally owe a duty of care to any and all persons they treat. If you have retained the services of a medical professional, regardless of whether you or an insurance company ultimately pays for those services, that professional owes you a legal duty to follow the standards of reasonable care ordinarily followed in his or her field.

The second element, breach of duty, is typically harder to prove. To establish a breach or violation of due care, a plaintiff must show that the provider unreasonably failed to follow the standards or practices ordinarily used by other professionals in that field. With few exceptions, this proof requires plaintiffs to retain the services of an expert witness with a sufficient level of knowledge and experience in the defendant-provider's field. Such expert witnesses must be ultimately willing to criticize their colleague in open court subject to the cross examination of defense counsel. Professionals willing to serve as expert witnesses are hard to locate and expensive. Some medical institutions prohibit health care professionals associated with them from testifying against their colleagues unless they first obtain the approval of the institution in advance.

The separate, additional elements of causation and damages must also be established. Damages need not be proven with mathematical precision. Reasonable estimates of the amount of harm caused by an injury may be adequate. Recoverable damages may include: the amount of the medical expenses incurred in treating the injury; compensation for past, current and future pain and suffering; any lost earnings and losses for diminished earning capacity; and compensation for future, foreseeable medical expenses.

In each instance, however, these damages may not be recovered unless the plaintiff is able to prove a causal relationship between the defendant's violation of due care and the particular injuries alleged. If the particular loss or harm would have occurred anyway, regardless of the defendant's negligence, the damages associated with that loss or harm would not be recoverable. Causation defenses are very common in medical malpractice cases. Defendants frequently allege that the damages alleged in such lawsuits were caused by other medical conditions and factors unrelated to their conduct.

In recent years, many jurisdictions have adopted statutes limiting the amount of damages that may be recovered in medical malpractice cases for pain and suffering. Many states have also enacted laws requiring screening panels or tribunals to review medical malpractice claims for merit before such cases may proceed in court. These laws have made it more difficult for plaintiffs to pursue malpractice claims. Despite these hurdles and requirements, plaintiffs should not be discouraged from bringing valid claims and seeking just compensation for harm caused by negligent medical treatment.