Despite the Tort Reform "Fake News" Medical Malpractice Claims are Rare and Difficult
Successful Malpractice Cases Mean Proving Four Elements
If you’re considering filing a malpractice lawsuit, you and your attorney need to establish four elements:
Duty to provide medical care. The first thing you need to prove is that the health care professional had a duty to provide medical care in a reasonable and customary manner for a doctor or healthcare professional engaged in the same area of practice. This is not generally an issue once the medical professional agrees to treat the patient. The complexities with respect to this element arise when there is a medical team caring for a patient.
Standard of care violation. Next, you have to prove that the health care professional violated the standard of care. Usually, the courts will combine the standard of care within the area where the alleged incident took place as well as the national standards of care. This is called the "locality rule" and is the case in Illinois. Both sides of the case will ask expert witnesses to testify as to the standards of care that have been established.
Injury sustained. Third, you need to prove the patient suffered a compensable injury. This can be a physical or emotional injury and is usually a combination of both. It is this element that begins the uphill battle against the negligent doctor and their insurance company-supplied attorney. Usually, the healthcare provider who committed the malpractice will have their own expert doctor who they will pay to testify that the injuries at issue in the case were not related to the deviation in the standard of care. This underlines the importance of retaining a competent and local attorney.
Conduct caused injury. The last thing you need to prove is that the injury was caused by the conduct on the part of the health care professional. Otherwise known as causation, this can be the most difficult element to prove and is usually the one factors argued the most in a malpractice lawsuit. Causation is established by an outside doctor analyzing the medical records in the case and determining that, to a reasonable degree of medical certainty, the injuries might or could be caused by the negligence.
For more information on medical malpractice claims, contact us. We will sit with you, review your case and unique circumstances and advise you accordingly.