The Patient's Burden of Proof in a Malpractice Lawsuit

In a medical malpractice lawsuit, the burden is on the plaintiff - the patient and patient's attorney - to prove the medical provider is liable for injuries.

Medical malpractice is the term used to describe negligence in the provision of medical care and treatment by a doctor, nurse, physical therapist, hospital, or other health care professional. In this article, we'll discuss the plaintiff's "burden of proof" in making a medical malpractice case.

The Plaintiff’s Burden

Just like in any other personal injury case, it is always the plaintiff’s burden in a medical malpractice case to prove that the defendant health care provider was negligent. If the plaintiff cannot prove that the defendant was negligent, the medical malpractice lawsuit will be dismissed.

In general, negligence means not exercising reasonable care, or, more bluntly, it means doing something wrong. In medical malpractice cases, courts often define negligence as a health care provider’s failure to exercise the degree of care and skill of the average health care provider who practices the provider’s specialty, taking into account the advances in the profession and resources available to the provider.

This means that, in judging whether the defendant in a medical malpractice case was negligent, the jury must compare the defendant’s actions to those of the average practitioner in the same specialty as the defendant. For example, if the defendant is a hand surgeon, the standard by which he/she will be judged is that of a competent hand surgeon. Or, if the defendant is a physical therapist specializing in spinal rehabilitation, the standard by which he/she will be judged is that of that of the average physical therapist specializing in spinal rehabilitation.

How It's Done

Proving negligence in a medical malpractice case is hard and almost always requires expert testimony from another health care provider. Just about the only type of medical malpractice case that can be prosecuted without expert testimony is a case where a surgeon operates on the wrong part of the patient’s body or leaves a surgical clamp inside the patient’s body.

The plaintiff’s lawyer will begin by obtaining all of the plaintiff’s medical records and will then focus his/her search on finding the right medical expert to review the records and (hopefully) prepare an opinion that the defendant was negligent. The medical expert must usually be in the same field as the defendant, and should be in the same sub-specialty, even if the law does not require that. This is because an expert will be more credible if he/she is offering an opinion about his/her own specialty. So, if you are suing a spine surgeon, your lawyer will want to find a medical expert who is also a spine surgeon, and so on.

The Causal Factor

Proving medical negligence is only half the battle. As in any personal injury case, the plaintiff in a medical malpractice case must also prove causation, which is sometimes called proximate cause. Proving causation means that the plaintiff must prove by expert medical testimony that the defendant’s negligence was a cause of the plaintiff’s injuries.

Simply because the patient had a complication or did not recover from the underlying injury or illness as well as he/she had hoped does not mean that the health care provider was negligent or that the provider’s negligence caused the patient’s injuries. Similarly, just showing that other doctor would have treated the plaintiff differently from the defendant is not sufficient evidence of negligence or causation. The plaintiff’s medical expert must identify precisely what the defendant did wrong and show exactly how the defendant’s error caused the patient to be injured.

A Provider-Patient Relationship – And Duty

The plaintiff in a medical malpractice action must also prove that a professional medical relationship existed between the plaintiff and the defendant – such that the medical provider had a legal duty to treat the patient properly.

A provider-patient relationship exists when the health care provider participates in the care and treatment of the patient. The plaintiff must establish that the relationship existed at the time that the malpractice occurred. Proving that a professional relationship existed between the plaintiff and defendant is usually very straightforward. It is not generally an issue in a medical malpractice case. But this situation can arise. For example, if a doctor asks another doctor for advice on a case, is this just informal advice, or did the other doctor more formally “consult” on the case? In such a case, your lawyer would need to sort this out as the lawsuit progresses.

As you can see, there are many intricate legal and medical issues that must be strewn into a story of malpractice. That’s why these types of cases are typically referred to lawyers focusing a large portion of their caseload on medical malpractice.

Talk to a Lawyer

Need a lawyer? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NOLODRUPAL-web1:DRU1.6.12.2.20161011.41205