The Difficulty of Proving a Medical Malpractice Claim

What is Medical Malpractice?

Medical malpractice occurs when a hospital, doctor, or medical professional fails to properly carry out their medical duties. Medical malpractice often results in an injury to a patient due to the health professional’s negligence or oversight. There are many categories of malpractice, and it could be the result of diagnosis, treatment, aftercare, or simple healthcare management.

Laws vary state to state, but there are some general principles regarding malpractice that are consistent across the nation. 

At the root of a medical malpractice claim (as with any legal claim) is proof of malpractice by the healthcare professional. As one might guess, this is the most difficult part of any medical case. 

Basic Requirements for a Claim

There are a few basic requirements to make any kind of medical malpractice claim:

A Doctor-Patient Relationship

The physician must prove that a professional relationship existed between themselves and the medical professional in question. There must be a client-patient agreement in place, namely, “informed consent” to treatment, advice, or diagnosis. This means that a doctor friend prescribing an OTC medication outside of an official doctor’s visit wouldn’t hold up in court.

A Doctor’s Negligence

This means that there must be an error or oversight. An unfavorable diagnosis or treatment that doesn’t work are not grounds for medical malpractice. There must be proof that the doctor caused some sort of harm that a competent doctor would not have. The patient has to be able to show that negligence caused the harm.

The Injury Resulted in Significant Damages

These first two requirements can be met, but if it isn’t clear the negligence resulted in significant damages, the patient can’t sue. The types of damages / harm can include physical pain, mental anguish, additional medical bills, and lost work or earning capability. Because of this, medical malpractice can play a role in workers’ compensation claims as well. 

Common Malpractice Scenarios

There are numerous medical malpractice scenarios, but here are a few of the most common:

• Failure to diagnose: an illness left-undiagnosed that a competent doctor would have diagnosed
• Improper treatment: a mistreatment that a competent doctor would have handled administered properly
• Unnecessary surgery: a surgery that a competent doctor would not have administered or recommended
• Failure to warn of known risks: a procedure or treatment that results in side affects or negative results without warning
• Poor follow-up: injury due to lack of proper follow-up care that a competent doctor would have administered

The Difficulty in Proving Medical Malpractice

A claim begins with the plaintiff proving negligence. As with most law cases, it can be incredibly difficult to prove negligence. The three requirements for a claim discussed above are no easy task to check off, especially when the defendant often writes the medical reports that form the basis of the suit.

There are so many boxes to check and even when an almost perfect case is made, it’s not terribly difficult for a skilled lawyer to find a hole in the claim.

The good news for plaintiffs is the law recognizes how difficult this can be to make a case for medical malpractice. For that reason, a legal doctrine known as "res ipsa loquitur“ exists. Roughly translated, the phrase means “it speaks for itself.”

It implies that the plaintiff only needs to show a particular result occurred and would not have otherwise but for someone's negligence. If this speaks for itself, then the burden of proof shifts to the defendant to prove that they were not negligent. 

3 Pieces of Advice for Victims of Medical Malpractice

Bring the Case as Soon as Possible

In most states, the case must be brought forward somewhere between six months and two years from the time of the incident. This statute of limitations is really important, as the case will be dismissed if not brought forward in the appropriate timeline set by the state. 

Hang Onto Any and All Evidence

If one has any reason to believe there was any negligence in a procedure, appointment, surgery, diagnosis, or follow-up – it’s crucial to hang onto any and all evidence associated with the event. As tricky as these cases are, it’s critical not to let any upper hand be lost.

Consult Legal Counsel

This blog post is not legal counsel, but general information on the subject. Each state has different laws and requirements around medical malpractice claims, so it’s vital you seek experienced legal counsel.