November 9, 2019

“How hard is it to prove medical malpractice?” We get this question a lot. Even if it seems “obvious” that a physician or other medical provider was negligent (for example, when a surgeon operates on the wrong body part, such as operating on the left knee instead of the right knee), the question as to whether the patient can recover compensation for his or her injuries may be more complicated than it appears.

In general, a victim of medical malpractice must not only prove medical negligence, but also must prove harm (injuries) he or she suffered as a result of the medical negligence. While every U.S. state has its own laws governing medical malpractice claims, “medical malpractice” may be generally defined as the breach of the standard of care by a health care provider. The standard of care may be generally defined as what a reasonably competent health care provider would do (or not do) under the same or similar circumstances. These definitions are general, and various states may define these terms differently.

But a victim of medical malpractice must not only prove that there has been a breach of the standard of care, but also must prove injuries or damages that flowed from the breach. If there are no damages, then typically there is not an actionable medical malpractice claim.

For instance, the Appellate Court of Illinois Second District recently affirmed the Illinois medical malpractice defense verdict in a medical malpractice case where the defendant surgeon planned to operate on the 54-year-old plaintiff’s back from L3-4 to L4-L5 but instead operated from L2-L3 to L3-L4, thereby requiring additional surgery and allegedly causing harm to the plaintiff. The defendant surgeon operated a second time four days later during which he encountered a lot of scar tissue, the dura was adhered, and he encountered a dural tear. The defendant surgeon testified during trial that when he got up to L2-L3, he found bulging discs, spinal stenosis, and some arthritis (he did not put those findings in his operative report). He further testified that he had a complication of the dural tear, but that would have occurred if he operated in that area in the first operation. Source Pugh v. Advocate Health and Hospitals Corporation, 2019 IL App (2d) 180118.

In a recent California medical malpractice case, the Court of Appeal Fourth Appellate District Division One State of California (“California Appellate Court”) held that “[w]hile in many cases, even most, a patient subjected to an unwanted surgery will easily be able to prove causation and harm to some extent, they remain factual questions for the jury to decide on the specific evidence presented.” The plaintiff had filed a lawsuit against the defendant surgeon, alleging medical battery. The California medical malpractice jury found that the defendant surgeon had performed a medical procedure without the plaintiff’s consent, but that the procedure did not cause her any harm. The plaintiff appealed, arguing that the jury’s findings are inconsistent and irreconcilable.

The California Appellate Court held: “Based on our review of the record, the jury could reasonably have found that [the plaintiff] had not proved the lateral release procedure caused her any harm. It could have concluded that the harm claimed by [the plaintiff] (various medical ailments and consequent inability to work) was not caused by the lateral release procedure … While there was evidence that the lateral release procedure generally required more recovery time than meniscus surgery, the jury was not required to believe that [the plaintiff’s] recovery time was any longer as a result of the lateral release procedure.” Source Walker v. Ghazal, D075548.

In the vast majority of medical malpractice cases, the plaintiff carries the burden of proof to establish that the medical malpractice defendant(s) breached the standard of care. The medical malpractice victim is most often required to provide appropriate medical expert testimony to establish the breach of the standard of care and the harm suffered as a result of the breach. Many times medical malpractice cases involve a “battle of the experts,” where the opposing parties retain experts who testify as to their opinions in support of the plaintiff’s claims or the defendant’s defenses, and it is up to the trier of fact (the judge or a jury) to determine which experts to believe. The presiding judge acts as a gatekeeper with regard to medical expert testimony, making sure that the expert opinions meet the various requirements of admissibility for the opinions.

It is often difficult to find medical malpractice attorneys on your own to help you with your claim – not every instance of medical malpractice, no matter how obvious, will result in the victim being compensated for their injuries and losses. Many people who contact us have questions regarding what happened to them or their loved ones, and we attempt to find them appropriate medical malpractice lawyers nearby them so they can have their questions answered. Our service is free to you. We have successfully found lawyers for medical malpractice victims throughout the United States.

Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your local area who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Turn to us when you don’t know where to turn.