To establish a successful case for medical malpractice against a doctor there are certain elements that must be proved. One of these is that you must have suffered an injury as a result of the doctor's act or omission. This means that if you are treated by a doctor who has responsibility for your care, who also does not act in your best interests but in so doing does not harm you either mentally or physically, this would not satisfy the requirements for a medical malpractice claim.
However, it is not sufficient simply to show that an injury occurred. The injury sustained by the plaintiff must have been caused by the doctor. This is known as ‘causation.' One of the obstacles that may arise in a claim for medical malpractice is whether or not there is sufficient evidence to prove that the injury was in fact caused by the negligent act. If there is a question over this, both the plaintiff and defendant will instruct experts to provide an opinion about establishing (or disproving) the link between the injury suffered and the negligent act.
It can be very difficult to establish this link, both medically and in terms of the law, and is often a reason why a case goes to trial rather than settling out of court. Causation, or establishing the link between the doctor's negligence and the injury caused, is not the same as ‘association'. Sympathetic juries can sometimes blur the differences between association and causation. For example, if a woman does not pay her medical bills in her third trimester and as a result her physician refuses to continue to care for her, it may be difficult for the physician's attorney to persuade the jury that the baby's birth defects were not caused as a result of his lack of care in the latter stages of the pregnancy.
Another factor in proving or disproving injury relates to the harm that the patient themselves may have caused. They may have contributed to their injury through their own negligence, either prolonging the symptoms or recovery time, or making the prognosis more serious. In cases in which there is such a suggestion by the defense the plaintiff will have need to show that they did not cause or contribute to their injuries.
As medical malpractice is a form of negligence, it follows that there are defenses to negligence that can also be used to defend against an allegation of medical malpractice. In terms of injuries, this could mean a number of different things. Examples are that the harm suffered was an unavoidable "known risk" and therefore could not amount to negligence; that the patient failed to disclose something important to the physician treating them; that the patient caused a lot of the harm him or herself; or that there was an intervening event following the alleged malpractice that breaks the ‘causation' link between the doctor and the injury.
|If you've been caused harm or injury by a medical professional, consult with a medical malpractice lawyer near you to discuss your case and find out if you are eligible for compensation.|