When your doctor, dentist or other health care professional injures you or leaves you sicker than you were when you sought his or her medical intervention, you can sue for medical malpractice. But what must you prove in order to win your lawsuit?
FindLaw explains that the majority of medical malpractice plaintiffs sue under the theory of negligence. In other words, your claim is not that the defendant deliberately injured you, but rather that he or she negligently did or failed to do something that resulted in your injury.
Proving negligence
To prove negligence, you must present evidence of the following:
- That the defendant owed you a certain duty of care
- That he or she failed to provide you with that level of care, i.e., that he or she gave you substandard care and thereby breached his or her duty
- because of the breach, you suffered injury or more serious illness
- That the breach was the proximate, i.e., most important, cause of your injury or illness
- That your illness or injury caused you to sustain compensable damages
Standard of care
Each type of health care professional practices under a different standard of care. For instance, a doctor practices under a different standard of care than does a dentist, nurse, pharmacist, lab technician, etc.
Expert witness
Because laymen, including judges and juries, find medical concepts and terminology difficult to understand, you likely will need to hire an expert witness to testify on your behalf at trial and explain things in laymen’s terms. An expert witness is someone the court recognizes as having specialized knowledge in a particular field.
For purposes of your trial, you will need an expert witness who possesses roughly the same education, training and experience as the defendant. In addition, he or she should practice the same type of medicine in the same type of environment as the defendant.