I still remember my accident like it was yesterday. One minute I was driving my daughter to school and the next I was waking up in a hospital bed. It was frustrating to deal with the emotional trauma of forgetting an entire week of my life, in addition to stressing about my small child. Fortunately, we were both able to recover, but it wasn't easy walking dealing with the medical bills that accompanied the accident. I found myself struggling with things as simple as answering the phone, because I was nervous about dealing with another insurance adjuster. Fortunately, by working with a lawyer, I was able to make sense of my situation. I know that you can overcome difficult challenges too, which is why I shared my story on this website.
Sometimes, people think they have a medical malpractice case when they actually don't. The problem is there are some strict guidelines that define what malpractice is. Since medical malpractice falls under tort law, your case has to have the necessary elements to prove negligence.
Elements of Proving Negligence
In most tort cases, there are four main elements of negligence. It's on you and your defense to prove each of these elements. In some cases, if you cannot prove all of them, then you lose the case. Since tort law varies state by state, and county by county, it's important that you get these elements right.
In medical malpractice, there may also be additional elements that you must prove. However, in general, here's what you usually need to prove.
Duty of care / Duty to protect – This element is asking if you, the doctor, or healthcare facility had a duty to serve you in their stated capacity. You must prove that you went to that facility, that facility accepted you, and you had treatment there.
This is usually the easiest element to prove, as you will have doctor's notes, bills, and other records of your visits. What's important here is to prove the doctor or facility had a duty directly to you.
Breach of duty – A breach of duty occurs when the doctor or facility acts in a way that veers from their duty of care.
For example, if all practices and established literature says the doctor is to do A, B, and C, but your doctor jumps straight to C, then he or she has committed a breach of duty. Most of the time, a medical expert becomes necessary to prove that your doctor was negligent in his or her actions.
Causation / Cause in fact – Just because a doctor did something unorthodox doesn't mean that it's the direct cause of your injury. You have to prove that you would not have suffered the injury if the doctor had not done something wrong or negligent.
There is also a sub-part of this element that sometimes goes by the term "proximate cause," or "superseding cause." This type of cause is about degrees of separation.
Consider if you have a surgery, and everything seems fine, then you get into a car accident. Proving that malpractice from the surgery lead to the later car accident becomes far more difficult.
Damages – If you didn't suffer any harm, or if the harm is negligible, then you don't have a case. Even if all the other elements are true and prove true, you cannot sue for damages if you have no actual damage.
Proving damages works much like any other personal injury case. You will need paperwork that documents your injury and the medical treatments you've undergone for it.
In many situations, proving all the elements can become incredibly difficult. This is especially true if you're trying to do it on your own. In cases of medical malpractice, your first act should be to consult a profession medical malpractice attorney, like those at McLaughlin & Lauricella, P.C., to help you establish your case.