How to Prove Medical Malpractice

Written by Personal Injury Lawyer Larry Lapidus

Of all the cases where personal injury attorney represents a client, medical malpractice claims can be some of the most intense. Why? Because proving malpractice involves a great deal of attorney expertise. That’s why, if you suspect you have been a victim of medical malpractice, you must choose a lawyer with great care.

What’s Needed to Prove Medical Malpractice?

To prove medical malpractice, a lawyer must demonstrably show that a doctor or other healthcare provider:

Had a duty of care to the patient
Breached the standard of that care (or acted in a way that a reasonable, similarly trained person would not have acted)
The breach or error caused actual harm to the patient

If all of the above occurred, there are likely legal grounds for a medical malpractice claim. Keep in mind, however, that every claim is different and unique to the client’s experience. No two medical malpractice claims are the same. As a matter of fact, they’re all quite different.

How You Know You May Have a Case

While studies show the most common medical malpractice claim is misdiagnosis, There are a few telltale signs that may help guide your decision to pursue a medical malpractice claim:

Lack Of Informed Consent

This occurs when a physician either a) performs a procedure a patient did not agree to, b) a doctor did not sufficiently explain the risks and benefits of a treatment, c) if the doctor had adequately explained the risks and benefits, the patient would’ve either declined the procedure/treatment or chosen an alternative.

In these types of cases, the victim must have suffered actual harm.

The Medical Provider Admits To A Mistake

This sounds like a no-brainer, but some medical professionals don’t readily come forward to admit mistakes. The Agency for Healthcare Research and Quality created a program called CANDOR (Communication and Optimal Resolution) specifically for this reason. CANDOR encourages medical professionals to be honest with patients and families when a medical error has occurred, to apologize for the situation, to offer victims and families compensation, to investigate the incident, and to update the patient and family on the progress of that investigation.

The initiative is noble, but it requires compliance among medical professionals everywhere. It may not be enough to make up for the expenses and/or pain the victim is experiencing. Even if a doctor or hospital admits their mistake, your best bet is to call a highly skilled, experienced medical malpractice attorney to review your claim.

Extraordinary Consequences

While physicians are obligated to explain risks and benefits that are generally common to the treatment or procedure, they actually are not required to describe highly unusual risks. But if a patient experiences one of those highly unusual scenarios, that could signify a mistake on the doctor’s part.

Have you ever heard of those cases where a patient goes to the ER for excruciating pain or infection only to find out that the surgeon left a foreign body in the victim’s body from a previous procedure? According to the American Society of Anesthesiologists, “Each year, between 4,500 and 6,000 patients leave the nation’s operating rooms with unintentionally retained surgical foreign objects (RSFO) in their bodies; with surgical sponges and needles accounting for more than two-thirds of all such incidents.”

Those cases would all likely qualify as an extraordinary consequence.

Another example could be more egregious, such as a doctor neglecting to consult with a patient’s allergy history and prescribing a medication to which the patient has a severe reaction.

All of these signs point to medical malpractice, which can have significant long-term impacts on victims’ lives–in some cases, it could even lead to death. And on the flip side, medical malpractice lawsuits can end a doctor’s or medical professional’s career.

Other Instances of Medical Malpractice

Failure to diagnose: If your doctor misses a diagnosis (or makes an incorrect diagnosis) that any other reasonably competent physician would identify, you may be able to file a medical malpractice claim.
Surgical malpractice: This covers amputation of the wrong body part, committing a surgical error that was avoidable, or operating outside the area designated for the operation.
Failure to refer to a medical specialist: Complex medical problems often require specialized doctors. In complex and uncommon medical cases, the law requires a general practitioner to consult with or refer out to a specialist physician trained to review specific tests and make certain diagnoses. A general physician’s failure to refer a patient to one of these specialists in particular cases could be grounds for medical malpractice.