How do I know if I have a good case for malpractice?

UPDATED: Jan 30, 2014

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How do I know if I have a good case for malpractice?

I had surgery on my shoulder a couple years ago because it kept coming out of the socket joint of my shoulder. I went to the orthopedic surgeon to repair it and did physical therapy after for recovery. Yet now, 2 years after surgery, it still feels very loose and could pop out at any time. I feel as if the doctor did not perform the surgery correctly. I just noticed when I searched the doctor online that he only has 8 years of experience in the field, when the average years of experience is 20. Do I have a case?

Asked on January 30, 2014 under Malpractice Law, Kentucky


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor


Although the claim is for negligence, the duty owed in a medical malpractice case arises from the contract between the doctor (or hospital) and the patient.

The existence of a duty is the least commonly contested element in the area of medical malpractice litigation. Once the physician-patient relationship is established, the physician owes a duty to the patient.


In Kentucky, the law provides that the duty owed is: to provide that degree of skill, care and knowledge required of a reasonably competent practitioner engaged in the same medical specialty under circumstances similar to those existing at the time and in the place where the plaintiff contends malpractice occurred.

In layman's terms, the doctor must be competent (have good knowledge and skill), and must make reasonable decisions based on that knowledge. In most instances, establishing what is required of a "reasonably competent practitioner" requires expert testimony. It is therefore necessary to consult with a doctor (or nurse, etc...) and the medical literature to define the specific duty in any given case.


Once again, establishing whether the duty was breached usually requires expert testimony. The plaintiff's expert must review the medical records to determine whether a mistake was made, and if so, whether the mistake caused some damage.

This is the most hotly contested area in the vast majority of cases. People are injured or die every day while under a doctor's care, often times when no mistake is made. It is also possible that a doctor takes completely inappropriate action in the treatment of a patient, but no damage is done. The patient will not have a valid medical negligence claim in either of these cases.

However, when a doctor (or nurse, etc...) makes an error and damage results, they can be held responsible. Based upon what you have written, you need to consult with a medical malpractice attorney in your locality due to statute of limitation considerations. One can be found in your locality through

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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