Proving Medical Malpractice

By Jay Shelvin posted 10-24-2020 03:05 PM


We place trust in doctors to do what is in our best interests. However, this is not always the case. Whether deliberately or not, doctors make mistakes or act without complying with the Hippocratic Oath they took when they graduated from medical school.

Unfortunately, medical malpractice is more common than you might think, and the number of cases brought against doctors is growing each year. Patients are more aware of their rights and are holding medical professionals to account.

How medical malpractice works

Healthcare providers have a duty of care, which they violate when not informing patients about the risk of procedures and their own professional qualifications and experience. 

Additionally, doctors are duty-bound to maintain patient-doctor confidentiality. Medical professionals who fail to fulfill their duties are negligent, known as dereliction. For example, not providing the best care possible or prescribing the wrong medication are examples of dereliction. 

For a doctor’s actions to constitute medical malpractice, their negligence should directly cause injury or harm to the patient. This is where the burden of proof becomes onerous. 

Then courts assess how much damage the doctor’s malpractice caused the patient and put that into monetary terms. The medical professional is obligated to pay damages ordered by a court.

Medical injury stats show that patients are most at risk when undergoing surgery. While many doctors try their best, and nothing could have been done to save a patient, others commit malpractice, and their actions cause someone to die.

Lodging a medical malpractice claim

A medical malpractice lawsuit has a better chance of being successful if you hire an attorney. At the Hastings Firm, specialists help you get a settlement you deserve if you or a loved one have been the victim of medical malpractice. Attorneys undertake the challenging task of proving that medical malpractice took place. 

Most doctors have malpractice insurance, so your lawsuit is not against the medical professional alone but also their insurer. These multi-million-dollar companies are reluctant to pay out on claims and will try to avoid it.

The right attorney will also guide you regarding state laws that affect medical malpractice suits. Some states have a cap on how much you may claim, and your lawyer can advise you on this.

What you need to prove

To prove that a doctor has committed medical malpractice, several factors must be substantiated by fact. First, evidence of a doctor-patient relationship must be presented because medical advice outside that relationship cannot constitute medical malpractice. 

Next, you need to prove that the doctor acted negligently. Examples of malpractice include a failure to diagnose a condition, any improper treatment offered by a doctor, or their failure to warn a patient about known risks of any course of treatment.

To help your case, you might need a medical expert to testify to the alleged malpractice to substantiate your claim. This can be costly as few experts testify for free. 

What to expect

Few medical malpractice suits go to court immediately. While you must hire an attorney and file your claim as soon as possible, the case might go through medical malpractice review panels first to determine your claim’s validity. This panel does not act as a substitute for the court, but their findings are presented in court to strengthen your case.

To keep costs down, many doctors or their insurers might offer to settle the case out of court. While this will save you waiting for the outcome of a court case, be aware that they will offer you far less than you initially claimed. Let your lawyer handle the negotiations until they come up with a figure that suits you and the insurer.