Proving Fault in a Medical Malpractice Lawsuit

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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In a malpractice case, there are several ways to establish that a health care provider is at-fault for an injury. These type of awsuits by and large follow a distinct procedure based upon common law theories of negligence. This means that the same four-prong requirement of a general negligence claim more or less applies to any given case. 

In the most general terms, to win a malpractice case, a plaintiff will have to show that:

  1. The medical professional owed the plaintiff a duty;
  2. the medical professional failed in that duty; which,
  3. caused the injury;
  4. and injury in fact took place.

Standard of Care

The standard of care is the degree of care that a reasonably prudent medical provider, in same or similar circumstances, would provide to a given patient. Standard of care is based on local standards, meaning that the prevailing consensus among practitioners in the same geographic area applies. 

The standard of care is simply the action most medical providers in the same area would take in the same situation. Factors that influence standard of care include access to technological advancements, nearby educational institutions, whether it is a rural vs. urban setting, among others factors. Generally, if a person can prove a medical provider breached a standard of care, and that breach caused injury, they will be successful in a medical malpractice case.

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Informed Consent

Failure to obtain informed consent is another way a plaintiff may prove fault in a medical malpractice case. Regardless of the success or failure of a given treatment or surgery, if the medical provider did not obtain informed consent from the patient prior to surgery, the provider is likely guilty of medical malpractice. Informed consent is consent granted by a patient after being informed of the potential risks, benefits, complications and other developments associated with a particular procedure.

Medical professionals are required by law to provide, at a minimum, the information referenced above, but they are also required to give each and every patient the opportunity to ask questions about potential courses of treatment. In emergency situations, informed consent may not be possible, and the law takes this into account. But in general health care treatment, failing to obtain proper informed consent is grounds for malpractice. 

An example would be if a doctor tells a patient to have a particular surgery performed, but does not inform the patient of a potentially harmful side-effect of the surgery, the patient can bring suit if and when this side-effect is discovered. As long as the patient can prove lack of informed consent, he or she will be in a good position to win a malpractice case.

The Res Ipsa Loquitor Doctrine

Proving fault in malpractice cases can be difficult even in the most favorable conditions. All too often, patients suffer injuries that coincide with medical treatment, but without any obvious cause. In these situations, the doctrine of res ipsa loquitor can come into play. Translated from Latin, res ipsa loquitor means “the thing speaks for itself.” 

When invoking res ipsa loquitor, a medical malpractice plaintiff need only show that a particular result or injury occurred and would not have occurred but for a medical provider’s negligence. Essentially, res ipsa provides a legal basis for arguing that a medical professional’s negligence is the only possible cause for a particular injury.

To make a successful res ipsa loquitor argument in a case, a plaintiff has to show that: 

  1. evidence of the actual cause of the complained-of injury is not discernible; 
  2. the particular injury would not normally occur absent negligence;
  3. the plaintiff is not responsible for his/her own injury;
  4. the medical professional had exclusive control of the procedure/device that caused the injury; and, 
  5. the injury could not have been caused by any other procedure/device other than that which was in the medical professional’s control. 

It may sound complicated, but all res ipsa loquitor provides is a legal basis for stating, “There’s no other way this could’ve happened, and this is why malpractice occurred.” 

Click here for a more detailed explanation of res ipsa loquitor. 

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