Challenges of Proof in Medical Malpractice

 Even the most experienced doctors, with all of their education and high level of skill, are not immune to making mistakes in their diagnoses and procedures.  However, we should always expect a high level of proficiency and absolute professionalism.  If a patient should experience injury (or worse) because a physician fails to meet the proper standards of care, then damages may be sought for medical malpractice.

There are several ways to prove medical malpractice and all of them are based on the physician’s failure to demonstrate the proper standard of care.

Negligence

The majority of cases proceed under the assumption that there was some level of negligence on the part of the physician or medical professional.  But to establish negligence, several things must be proven:

• There was a duty owed to the patient/plaintiff by the health care professional (doctor/patient relationship).
• That the health care professional deviated from the applicable standard of care.
• A level of connection, even casual, between the deviation and the patient’s injury.
• Permanent injury to the patient.

Informed Consent

Often, failure to obtain “informed consent” from a patient before a procedure is a form of medical negligence.  And while the specific definition of informed consent varies from state to state, it basically means that a medical professional must tell a patient all the potential benefits, risks and alternatives in any procedure.  The patients written consent to proceed must be obtained at all times.

Problems of proof

Since the law recognizes that plaintiffs face certain difficulties in proving medical negligence, he or she may invoke a legal doctrine known as “res ipsa loquitur”.  This translated to “the thing speaks for itself,” and allows that the plaintiff only needs to show that a particular injury was suffered and it would not have occurred if not for the medical professional’s negligence.  It essentially shifts the burden of proof from the plaintiff to the defendant.  Now the defendant must show that he or she WAS NOT negligence.  It helps to level the playing field between the plaintiff who is typically a “layperson” and the defendant who is most likely a highly educated medical professional.

Please note: this article is meant only as a guideline to give general answers to some of the most common questions regarding this topic.  So, please contact the Lanza Law Firm on 908-753-6010 and make an appointment today to discuss your particular situation.