Finding fault in a medical malpractice case is often very difficult task. There are two items that must be identified: injury and negligent that led to the injury. Both must be present to effectively prove fault.

The most important factor is that there must be a clearly drawn connection between the negligent act and the subsequent injury. The events that lead from one to another must be chronological. Negligent act “A” must lead to injury “B”. The events between the two points must be present and also ordered. The patient records are the best way to prove or disprove the connection. Documented failure to follow the informed consent agreements, such as gaps in patient visits (frequently missed treatments and/or appointments), failure to follow dietary restrictions on the patients part; and refusal to adhere to treatment protocol or deviations from the informed consent agreement on the physician’s part can be proven in patient medical records. These documents can end a malpractice case very quickly in either direction.

Another important factor is standard of care. The presence or absence of appropriate standard of care is vital to a malpractice case. The patient must prove that he did not receive the standard of care that he was entitled to. Meanwhile, the doctor must prove that she administered to the patient the same care that a similar patient in a similar circumstance, under a similar doctor’s care who possesses similar facilities, training, and expertise would have administered. Both cases usually hinge on the testimony of expert witnesses who will use their own experience (the similarities) to either confirm or deny that the care received fit the standard of care.

Expert witnesses can also prove or disprove res ipsa loqitar, which literally means “the thing speaks for itself” (Kern). This defense is a simpler form of the standard of care argument in that it only requires proving that the injury was not possible without the negligent event. It is a defense used frequently on a patient’s behalf; however, it can be used to benefit the doctor. She would have to prove that the injury could have only happened if the patient was negligent.

These are just a few of the most common ways to prove fault in a medical malpractice case. As with any legal matter, an attorney must be consulted to effectively build a case for or against medical malpractice

Citations

Kern, Steven T. “Cure Litigous Bent by Teaching, Not Tort Reform; People Must Accept

Reasonable Conduct-in-retrospect or Perfect Conduct.” Diagnostic Imaging.