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How Do You Prove Medical Malpractice

Medical malpractice cases are more complex and difficult to prove than general negligence cases, such as auto accidents and slip and falls.

There are a number of reasons for this. One is that special laws apply to medical malpractice cases requiring expert witness testimony. Another is that there may be numerous causes for the injuries suffered, and many of those causes may be related to other illnesses or diseases.

Proving a medical malpractice case means proving all of the following:

  • A negligent act or medical mistake occurred
  • The negligent act or medical mistake caused an identifiable injury
  • The injury resulted in damages, such as pain and suffering, scarring, and/or loss of income

Proving Negligence in a Medical Malpractice Case

So, how do you prove a negligent act occurred? To prove a negligent act by a health care provider, such as a doctor, one must prove that the doctor fell below, or violated, the "prevailing professional standard of care.”

Florida law defines the prevailing professional standard of care as that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

How do we prove what the standard of care was and that it was violated? In order to prove this, a medical malpractice attorney must hire an expert who will review the evidence, such as medical records, and be willing to testify, under oath, what the standard of care was, and that the defendant doctor's actions violated that standard of care. In addition, if the doctor is a specialist, such as a cardiologist or a neurosurgeon, the expert hired must be of the same specialty.

For example: Let's say a patient complains to his family practice doctor that he has constant pain in his chest that seems to be getting worse. The pain increases with physical activity and he suffers from cold sweats. His doctor shrugs off the complaints and tells the patient he has stomach problems. A couple of weeks later, the patient suffers a massive heart attack and dies.

This would most likely be a violation of the standard of care. An expert family practice physician would review the records and testify that given the circumstances described, the prevailing professional standard of care required that the patient have an EKG and be sent to a cardiologist. By failing to do this, the doctor violated the standard of care, and that resulted in the patient's heart condition remaining undiagnosed.

Proving Causation in a Medical Malpractice Case

The second element that must be proven is that the malpractice – the violation of the standard of care – caused an injury. We refer to this as "causation".

In the example above, the failure to timely perform an EKG and refer the patient to a cardiologist, caused the heart condition to remain undiagnosed and directly contributed to the patient's death. Had the heart condition been identified sooner, the condition could have been successfully treated and the patient would have never suffered the heart attack and would be alive today.

Causation must be proven in every case, and almost always must be established through the testimony of an expert medical provider. In our example, the expert to testify about causation would not be a family practice doctor, but from a different specialty, most likely a cardiologist, because only a cardiologist has the expertise to determine if the patient could have been successfully treated and the death avoided.

Proving Damages in a Medical Malpractice Case

Finally, we must prove that the injury caused by the malpractice resulted in damages. This is where medical malpractice cases become even more difficult because the damages need to be significant.

You've probably noticed from our example that we've had to retain two separate experts to prove negligence and causation. Those experts are very expensive, as are other costs that go into prosecuting a medical malpractice case. Because of these significant costs, in order to have a successful case, there must be a significant injury.

I advise my clients that there usually must be a significant permanent disability or severe scarring for there to be a successful case. Why? Because there must be the potential for a monetary recovery that will exceed the costs of the case. This is the unfortunate result of laws that make medical malpractice cases more costly to pursue than other types of negligence cases. The laws are not always fair to the victims of malpractice, but they are the laws set forth by our legislature and they must be followed.

It is extremely important for you to have your case evaluated by a talented and experienced medical malpractice attorney so that you know if your case is one that can be proven to be successful.