We rely on medical professionals to care for us in our times of need. While most interactions are positive, medical malpractice is a serious issue that can result in complications, delayed recovery, and, at times, even death. A report by Johns Hopkins University suggests that medical errors may cause more than 250,000 deaths each year.
However, it is important to understand that not all medical errors or diagnostic mistakes constitute medical malpractice. A medical malpractice attorney must provide compelling evidence satisfying four key elements to prove that medical malpractice has taken place and that you are entitled to compensation.
In this article, we will explore how to prove medical malpractice and why it pays to work with an experienced attorney as you pursue the compensation you need to rebuild your life.
Step 1: Understanding Medical Malpractice
Suffering pain, distress, or worse due to a medical practitioner’s error is tough to bear, but medical malpractice goes beyond simple mistakes.
Medical malpractice happens when a doctor, nurse, hospital, or other healthcare provider fails to provide a particular standard of care.
Examples of medical malpractice may include:
- Diagnostic failures: Mistakes in diagnosis or misdiagnosis of conditions due to not following professional standards. This could also include misreading or ignoring lab test results or not ordering proper testing.
- Surgical errors: Unnecessary surgery, wrong site surgery, and mistakes while performing surgery could lead to medical malpractice lawsuits. This would include foreign objects (such as instruments or other items) accidentally left inside the patient after surgery.
- Medication errors: Providing incorrect medication or administering the wrong dosage could constitute medical malpractice.
- Neglecting patient history: Failing to take a patient’s medical history into account could lead to injuries.
- Insufficiently informed consent: A doctor must sufficiently explain a procedure and its risks. If he or she does not, this could form the basis of a medical malpractice claim. This could also involve carrying out extra surgical actions beyond those you agreed to.
All of us fear an adverse outcome to a medical procedure or treatment. However, medical negligence cannot be determined solely by the outcome.
The following results do not necessarily mean medical malpractice took place:
- Failure to cure
- Unexpected result
- Unacceptable result
- Failure to recover
Even medical errors do not always constitute medical malpractice. These complications illustrate why it is so important to work with a medical malpractice lawyer who has an in-depth, accurate understanding of your state’s laws.
Step 2: Hire a Medical Malpractice Lawyer
Medical malpractice cases require meticulous research and analysis of medical documentation. Both sides will likely rely on expert witnesses to testify on their behalf.
Working with a medical malpractice attorney who can guide you through this complex legal action and take the weight off your shoulders is crucial. During your free case evaluation, the lawyer will listen with compassion to your story. He or she can advise you on whether your case is likely to be successful and if the law firm will take it on.
If the medical malpractice lawyer agrees to represent you, the law firm will use all the resources at its disposal to fight for the best result on your behalf.
Step 3: Prove the Key Elements of Medical Malpractice Cases
Every medical malpractice case starts in the same way. The lawyer acting for the plaintiff (injured party) must prove the four following points about the defendant (at-fault party).
Duty of care
This seeks to answer the question, “Was the medical professional responsible for this patient’s care?” Sometimes it may be straightforward to prove that there was an established doctor-patient relationship. However, it may be more complex if a doctor was covering for another physician or was responsible for a clinic where medical malpractice occurred.
Breach of duty
The next factor is whether the medical professional acted negligently. It is important to understand that a bad outcome is not necessarily evidence of medical malpractice. Instead, he or she must have met the required standard of care expected of a reasonable medical professional with his or her level of training and experience.
Some clear examples of negligence include:
- Removing the wrong organ
- Amputating the wrong limb
- Failing to follow anti-infection protocols during surgery
Causation
To prove causation, a medical malpractice lawyer must show that the negligence caused the injury to the plaintiff. Negligence may involve an act – doing something wrong or an omission – of failing to do something necessary. Even in tragic cases where someone passes away during medical treatment or surgery, the lawyer must still prove that this was the direct result of the doctor or surgeon’s negligence.
Damages
Finally, the plaintiff must show that the injury caused by medical malpractice resulted in financial loss.
There are three types of damages the injured party can pursue:
- Economic damages: Cover the actual losses you have experienced, such as medical expenses, lost wages, and lost business opportunities.
- Non-economic damages: This payment may be made to cover intangible losses, such as pain and suffering, mental distress, loss of consortium, and disfigurement.
- Punitive damages: Punitive damages are designed to punish the defendant and discourage others from similar negligence. Regulations vary from state to state, but in Arkansas, punitive damages are limited to $250,000, or triple the value of compensatory damages, but not more than $1 million. Punitive damages are only awarded in court and cannot be obtained as part of negotiated settlements.
Damages vary from case to case. Some states have set caps on the damages a medical malpractice victim can receive. However, there is no cap on damages in Arkansas.
A medical malpractice attorney can thoroughly investigate the impact of your injuries to fight for fair compensation for your malpractice claim. It is often possible to achieve an acceptable settlement through negotiation without going further. However, when a medical malpractice lawsuit goes to court, the judge or jury will decide whether the medical practitioner was negligent and may award damages.
Step 4: Gather Evidence
Your medical records can be among the most important evidence in a medical malpractice case. The defendant’s attorneys or insurance company may try to downplay or dismiss your medical malpractice claim, stating that your injuries were the result of existing conditions. Your medical records can provide powerful evidence to the contrary.
This evidence may include:
- Hospital records: Admission and surgical records, discharge notes, and other official documentation can help to establish the doctor-patient relationship. Prescriptions can also show the type and dosage of medications you were prescribed.
- Doctor’s notes: May detail doctor’s office visits, diagnoses, recommended treatments, and medications
- Lab test results: X-rays, other imaging tests, and diagnostic tests can show the information available to the medical professional during diagnosis or treatment
- Other notes: The hospital may have notes from other medical professionals such as nurses, physical therapists, and other staff who participated in your medical care
Your medical malpractice attorney and legal team will pore over these documents, searching for any evidence of deviation from standard care. Some errors are easy to spot, such as the amputation of the wrong limb. Others, though, require the expert assistance of seasoned medical professionals to understand what exactly went wrong.
Step 5: Hire Expert Witnesses
Most medical malpractice cases require the assistance of medical expert witnesses. The purpose of their expert testimony is to help the jury understand the nuances of the case, which would be beyond the experience of most people outside of the medical profession.
Establishing the deviation from the standard of care
Medical malpractice cases hinge on proving that a medical practitioner’s behavior deviates from the expected standard of care. Laypeople, including legal professionals, are not qualified to make these types of judgments. Expert medical witnesses have the qualifications, experience, and authority to testify to the malpractice, or lack thereof.
Speak to causation
A secondary way a medical expert witness may strengthen a case is by providing an opinion about whether the deviation from the standard of care caused the patient’s injury.
While a medical expert witness’s testimony is admissible in court and can strengthen a case, it is not the end of the story. A court is not bound to accept the testimony. Juries must decide how much importance should be given to it during their deliberations.
Arkansas law on medical expert witnesses
The Arkansas Code 16-114-206 requires the use of medical witnesses in cases that go beyond the common knowledge of some people who make up the jury. The plaintiff has the burden of proving that the medical care provider’s actions were negligent by means of expert testimony.
In 2012, the Arkansas Supreme Court struck down part of the Arkansas medical malpractice act related to expert testimony. The act originally required that expert testimony was provided only by a medical care provider of the same specialty as the defendant. However, it was ruled that this violated the separation of powers doctrine.
Therefore, as it is the court’s province to determine procedural matters, this section of the act was revoked. Arkansas law also puts the burden of proof on the plaintiff in cases focused on insufficiently informed consent.
A medical malpractice lawyer must build a strong case to prove the following:
- The surgery, treatment, or procedure was not performed in an emergency
- The medical care provided did not supply the right information to the patient
- Other issues were not at play, such as the medical professional reasonably withholding information to avoid adversely affecting the patient’s condition
Cases that do not need expert witnesses
Sometimes, medical malpractice is so obvious that there is no need to hire an expert witness to prove it. For example, there are situations in which no one other than the doctor could have harmed the patient, or the surgeon leaves a pair of scissors inside the patient’s body. In this case, the rule of res ipsa loquitur applies – the evidence speaks for itself.
However, do not assume that your case falls into this category. It requires strong medical evidence and an in-depth knowledge of Arkansas law to make a compelling medical malpractice case, whatever the circumstances. The next step is to fight for compensation in court or through negotiations.
Step 6: Fight for Compensation
Medical malpractice trials can be costly and time-consuming. Therefore, many cases are settled out of court, which is typically cheaper and faster. However, if the insurance company refuses to settle or you cannot agree on an acceptable amount of compensation, you will need to go to court.
Either way, a tenacious medical malpractice attorney will fight with everything he or she has to get the best result for you.
Choose Minton Law Firm for Your Medical Malpractice Case
None of us wants to take our medical provider to court. However, it may be the only way to get justice after suffering an injury due to the negligence of a medical professional. If you have lost a loved one in such circumstances, the desire for justice may feel even more acute.
The medical malpractice lawyers at Minton Law Firm are on your side. Our firm is headed by Justin Minton, a former insurance adjuster turned personal injury lawyer. He knows all the tactics insurance companies use to reduce medical malpractice compensation payouts. He and his team will fight with all they have to secure the best result in your case.
It all begins with a free case evaluation. Call 24/7 at 855-Xadjuster or fill out our contact form, and we will get back to you very soon.