Every plaintiff in every case carries the burden to plead and prove his or her allegations. This means that the plaintiff must substantiate his or her claim with facts and evidence that support the claim against the defendant.
Experienced medical malpractice attorneys are particularly sensitive to the fact that the court can terminate a plaintiff’s claim before the case gets to trial if the plaintiff has not backed up the negligence accusation.
Luckily, the basic elements of a medical malpractice action are well known and practiced medical malpractice attorneys are experts in the field. There are four main elements to plead and prove.
First, the plaintiff must prove that the defendant doctor owed him or her a duty of care. Such a duty cannot arise until a doctor patient relationship exists. Once that relationship exists, the doctor must perform his or her services as would any other reasonable and prudent medical professional under similar circumstances.
The plaintiff must also prove that the doctor breached this duty to the patient. This is where medical malpractice cases become more complex. The reason for this is due to the fact that expert testimony from a doctor practicing in the same filed and locality as the defendant doctor must testify as to the standard of care and as to the existence of a breach of that duty.
Thirdly, the plaintiff must prove that the breach was the proximate cause of the plaintiff’s injuries. There must be a connection between the breach and the injury. The defense would argue this point fiercely. Defense experts might not deny that a breach occurred, but they will subsequently argue that the plaintiff’s injuries could not have resulted from that breach.
Lastly, without damages, there can be no recovery. The plaintiff can successfully prove that he or she was owed a duty, that the defendant doctor breached that duty, and even that the breach caused the injury complained of. However, if the plaintiff does not prove that he or she suffered actual and ascertainable damages as a result of the injury, the jury will have nothing upon which to award compensation to the plaintiff.
Damages are the end result of an injury. The wages lost as a result of the medical negligence, for example. Costs attributed to the negligence; medical costs, rehabilitation costs, and the like. Lost earning potential if the plaintiff cannot return to his or her previous occupation. You probably already understand the pain and suffering is also a form of damages. These are all compensatory damages.
Punitive damages are also available to a plaintiff in certain rare but egregious circumstances in which the defendant doctor’s negligence was willful, wanton, and or reckless.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.