Patents are sometimes injured when a medical practitioner does or fails to do something he or she should reasonably have done or not done which falls below the acceptable standard of care. The patient may then have a claim for medical malpractice, which is a form of an area of law known as negligence. Usually, this medical practitioner is a physician, but anyone in the medical field may also commit negligence and be held responsible, including nurses, nurse practitioners, therapists, dentists, and dental assistants.

Between 15,000 and 19,000 cases are brought each year against medical practitioners in the United States, and payouts due to these cases average about $234,000.00. Approximately 195,000 people are injured or killed each year due to medical malpractice, and unfortunately many of these claims are not pursued. Negligence law is part of a broader category called tort law, which is controlled by each state’s legislative code and court decisions. Therefore details may differ from state to state. However, certain core concepts remain true and broad generalizations can be made about negligence law and medical malpractice.

Who can sue, and who can they sue?

Of course, the injured person may bring a case on their own behalf and file suit as the plaintiff. If that injured person is still alive but is too incapacitated due to injury or minority to bring their own claim, a parent, guardian, or possibly power of attorney may pursue the claim on the injured person’s behalf. If the patient died, the Administrator or Executor may bring a wrongful death suit, and the spouses and children and other dependents have their own claims for the financial and emotional losses suffered due to the death.

The defendant in these cases is the medical practitioner who did something or failed to do something which did not meet the standard of care and caused injury to the plaintiff. Unfortunately for nurses, nurse practitioners, and other medical personnel supervised by other medical practitioners like doctors, following orders does not guarantee that they cannot be sued. This often puts those employees in difficult positions. Sometimes they must choose between what they think is right and keeping their jobs. All of this does not mean that everything a medical does or fails to do that causes injury is actionable in a court of law. Each case must meet a certain number of elements to produce a recovery for the plaintiff.

Required Elements of a Medical Malpractice Case

In order to recover damages, or reimbursement for wrongs done, a plaintiff must prove four elements that are based in negligence law. The four elements are duty, breach of that duty, the breach caused injury, and the injury, which is also known as damage, actually exists.

1. DUTY: the plaintiff must prove that the medical practitioner took on a duty to care for the patient which is generally easy to prove in a medical malpractice case.
2. BREACH: next, the plaintiff must prove that the medical practitioner breached the duty owed to the plaintiff. This is the second-most difficult element to prove, because the plaintiff must show that the defendant did not meet the standard of care owed to the plaintiff. Therefore, the plaintiff must establish what constitutes the standard of care and prove that the defendant did not meet his duty.
3. CAUSATION: this is the most difficult element to prove. The plaintiff must establish that what the defendant did or failed to do caused harm to the plaintiff. In some cases this is easy, such as when a surgeon accidentally leaves a surgical pad inside the plaintiff when closing up after surgery. Sometimes it is more difficult, as when a doctor prescribes chemotherapy at a strength that later causes cancer.
4. HARM: if a plaintiff is bringing a claim, they have usually suffered harm and it is not difficult to prove. As mentioned before, the most difficult part is proving that the defendant’s breach caused this harm.In order to prove these elements, often plaintiffs and their attorneys must bring in expert witnesses. The Rules of Evidence require that anything that is technical, scientific, or not easily understood by lay persons in the jury must be explained by an expert witness. The expert witness must be qualified by the court as an expert in their field. In addition to these elements and required expert testimony, the plaintiff must show that the claim has not expired by waiting too long since the discovery of the injury to bring the claim to the court.

Types of Medical Malpractice

The range of medical malpractice is as wide as the medical profession. Because hundreds of thousands of medical malpractice cases have been decided on court, rules about the specific types have coalesced and general rules developed. Many attorneys who specialize in medical malpractice further specialize in categories of medical illness, and thus are more experienced at quickly distilling the relevant facts to prove the case.