Establishing a Medical Malpractice Lawsuit

The first element that must be established in a medical malpractice lawsuit is negligence. A doctor is responsible for providing a standard of care equal to the doctor's training and experience under a particular set of circumstances. The standard of care, however, changes depending on a number of factors specific to your situation. Although medical malpractice is really a form of negligence, it must be proven through the use of expert witnesses since the issues involved almost always require specialized knowledge and skills which are beyond those of the average lay juror. Of course, the defense will hire their own experts in an effort to defeat the plaintiff's case. In medical malpractice, the jury is usually left to decide which side's experts offer a more credible explanation of the doctor's conduct and whether it fell below the "good and accepted" standard of care required under those circumstances.

The second element that must be established in a medical malpractice lawsuit is proving causation. Even if the plaintiff proves the first element (that the doctor's conduct fell below the standard of care required under those circumstances), the plaintiff must still prove that this "departure from good and accepted medical care" caused the injury. Defense lawyers and the experts they hire are skilled in finding creative ways to assert that the injury was caused by some other event that is not connected with the doctor's mistake. In fact, in many cases, the tact taken by the defense is to claim that the injury would have occurred regardless of the malpractice. In this way, the defendant can actually concede that malpractice was committed and then say "So what". Again, this element becomes a "battle of the experts," and the jury is left to make the ultimate decision.

The last element that must be established in a medical malpractice lawsuit is proving the amount of damages which again requires expert testimony. Damages include medical bills, both past and future, lost wages, past and future, and pain and suffering. Many times the victim of doctor error needs specialized medical care for life.