Medical negligence lawsuits require the plaintiff to prove a duty of care, breach of that duty, injury, and proximate cause. Judges consider customary practices of medical professionals. Doctors purchase malpractice insurance for legal representation. Plaintiffs must prove damages and proximate cause, often with expert witnesses.
Medical negligence lawsuits fall under the tort law and consist of a plaintiff or group of plaintiffs accusing the defendant, a doctor, or an institution, of malpractice. The plaintiff must prove four elements: the existence of a duty of care, the breach of that duty, injury to the plaintiff, and the existence of proximate cause between the damage and the negligence which could have been foreseeable and avoided by any reasonable and prudent health care provider. Judges often evaluate the customary practices of other medical professionals in the same industry when deciding a case. Doctors and other health care providers purchase medical malpractice insurance as protection against medical malpractice lawsuits. In exchange for monthly or annual premiums, they are usually represented by attorneys provided by the insurance company.
First, the plaintiff must demonstrate the existence of a duty of care. This is often the easiest thing to prove, because there is a duty of care between every patient and a healthcare professional. Even where there is no written contract, there is often an implied contract for such dealings. The duty also requires that the physician have the skills and knowledge to treat the patient reasonably and competently.
The second element that must be proved in a medical malpractice lawsuit is a breach of duty of care. The standard of care is often defined as what a reasonable and competent medical professional with the same skills and in the same type of job would apply in similar circumstances. The standard of care and liability is often set by the medical industry and the plaintiff must demonstrate that it has not been met. A physician may be found guilty of breach of duty of care by failing to give informed consent, as is common and expected in the medical profession.
A plaintiff usually cannot win a medical malpractice lawsuit without proof of damages. Some of the common injuries that plaintiffs claim in medical malpractice lawsuits include pain and suffering, medical injuries and related medical expenses, and loss of wages and earning capacity.
Proving proximate cause is often the most difficult element in a medical malpractice liability case. The plaintiff has the burden of proving that negligence was a material factor in the consequential damages. It is often not sufficient to prove that there was an injury, but that the injury resulted from a negligent act or omission of the physician, and that such negligence was a substantial factor in the plaintiff getting injured. Expert witnesses are often called upon to testify on both sides to assert a proximate lawsuit, or to try to prove that there was none.
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