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Want To Prove Medical Malpractice? 4 Things You'll Have To Show.

Any discussion of medical malpractice should start with the idea's legal definition. Very basically, malpractice is when a medical professional fails to fulfill their duties in a reasonably competent manner, and a patient gets hurt as a result.

"Reasonably competent" is the operative concept here. What level of care can we expect from medical professionals? That's the big question in medical malpractice lawsuits, but it's not the only one.

For other types of suits, see: Dental Malpractice & Infective Endocarditis Lawsuits

1. Was The Doctor Actually Your Doctor?

Not every doctor has to provide you with reasonably competent medical advice or assistance. The first thing to prove is that a professional relationship existed between you and the negligent physician, a doctor-patient relationship.

You wouldn't be able to sue a physician that you met on the street, no matter how bad the advice they gave you was.

Most Plaintiffs have no trouble proving that their relationship with a doctor was, in fact, professional. If you went to the doctor's office, it's almost certain that the physician consented to be hired as your doctor. That consent is the essence of a doctor-patient relationship.

2. Did The Doctor Do Something Negligent?

Essentially, negligence is a failure to act with the same care that another reasonable person would use in the same situation. For doctors and other professionals, it's a little different.

Not every doctor has the same expertise. Some doctors diagnose cancer, while other physicians wouldn't be able to tell sarcoma from carcinoma. That's okay; as a society, we understand that the human body is massively complex, as are the many ways it can go wrong. In effect, we've divided the labor of understanding medicine among numerous different specialties.

So we can't expect a hematologist (who studies blood) to know all of the things a radiologist (who interprets diagnostic images) would. We can't expect them to act the same way either, or make the same decisions, even in the face of identical medical evidence. Instead, we compare "like to like."

In a malpractice suit, that means defining a "standard of care" that applies only in particular situations. If you think you were injured by a diabetes specialist's mistake, we'll consult another diabetes specialist to find out what a reasonable, prudent diabetes specialist would have done under the circumstances. If the malpractice involves a general practitioner, we'll consult a GP.

After defining the standard of care that holds in your case, you'll have to prove that your doctor failed to uphold that standard. This is sometimes called a "deviation" from the standard of care, and can take the form of incorrect actions or "omissions," failures to act.

3. Did Their Negligence Cause Your Injury?

Next, you'll have to show that the negligent act or omission actually caused your injuries. This may seem perfectly clear to you, but it's actually one of the most difficult aspects of a medical malpractice lawsuit.

Most people who file these lawsuits were already injured in some way before the malpractice occurred. That's why they sought medical attention in the first place. Chances are that their condition would have worsened anyway without a doctor's help. That makes proving harm difficult, even when a doctor's negligence was egregious.

You can't just say that you were sick, a doctor made a mistake and then you got sicker. You'll have to show that without the doctor's error you would have been healthier. But unlike in criminal cases, where attorneys have to prove "beyond a reasonable doubt" that something happened, Plaintiffs in medical malpractice cases only have to demonstrate that it's "more likely than not" a doctor's negligence led to their injuries.

4. How Much Have You Lost?

Most successful personal injury lawsuits compensate survivors for hard-to-quantify types of physical and emotional hardship in the form of "pain and suffering" damages. But cases rarely begin with a demand only for these so-called "general" damages.

Instead, you'll have to put a number to your injuries. These "special" damages are concrete costs like:

Most states have placed limits (or "caps") on the amount of damages Plaintiffs can demand in medical malpractice lawsuits. New York is one of only 15 states that hasn't.

How Long Do You Have To File?

Be forewarned that medical malpractice laws change by state. Of major importance to people interested in filing a lawsuit is the "statute of limitations," a window of time in which you're allowed to file suit. Those vary from state to state.

Usually, the clock starts ticking from the date of the actual malpractice, when your doctor made the mistake. In some cases, the statute can be extended, like if there was no possible way for you to have realized the malpractice until later.

Don't let state laws trip your medical malpractice lawsuit up. It's best to consult an experienced attorney as soon as you begin considering legal action, especially since many states have established even more hurdles for victims to jump over.

In some places, you have to consult a doctor, and have them write a statement supporting your claim, before even filing your initial complaint.

For related cases, visit: $62 Million Awarded In Medical Malpractice Case Involving Blood Thinners

Laurence P. Banville
Date Published: December 21, 2015
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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