How Do You Prove Negligence in Medical Malpractice Cases?
It is absolutely vital for your attorney to show that your medical provider failed to meet the standard of careÂ which other average practitioners would have provided under similar circumstances. Without this, there can be no case. But, no matter how badly the doctor failed, no matter how obvious the mistake or the failure to properly act, the standard of care is not enough to fully prove a medical negligence case. Other requirements must be shown by your attorneyâand one of the most important of these is the causal connection between the doctor's actions and the injury or death.
For instance, consider a very obvious mistake such as leaving a scalpel, sponge, forceps, scissors, needle, towel or another medical object inside of the patient after surgery. No one could possibly deny that to do so would lie beneath the proper "standard of care" and that any surgeon would be clearly negligent to do such a thing. This type of negligence, and similarly obvious cases of malpractice such as operating on the wrong patient or the wrong organ, are often referred to as "Res Ipsa Loquitur" cases, using a Latin phrase meaning "The thing speaks for itself." In other words, these incidents obviously involve malpractice.
But assume that theÂ medical malpractice lawsuitÂ also alleges that the patient died within days of the surgery, and that their death was the result of this surgeon's negligence. The mere fact that the doctor committed such obvious malpractice by leaving the item inside does not automatically mean that the death occurred as a direct result of the malpractice. A judge or jury would need to hear testimonial evidence from medical experts regarding their opinion on this matter. And just as medical experts are needed to educate the court about whether the "standard of care" has been met, such expert testimony is necessary here as well.
Actual Cause vs. Proximate Cause of Injuries
When lawyers talk about a doctor's actions "causing" an injury or death, there are actually two different types of causation:
- Actual CauseÂ is also referred to as "cause-in-fact". It relates to an injury or death that would never have occurred but for the wrongful or negligent act of the medical provider or was a result that should have been foreseen. An example of this would be a surgeon who amputated the wrong foot, or who negligently lacerated a patient's stomach during a routine surgery and the patient then became septic and died.
- Proximate Cause, on the other hand, deals with the question of whether a death or injury was caused by the actions or inactions of the medical provider, even though the doctor did not cause the original problem. An example of this would be a patient who already had cancer, but as a result of the doctor'sÂ failure to diagnoseÂ the cancer in a timely manner it grew out of control, leading to the patient's death.
"Battle of the Experts" Over Causation Question
TheÂ medical insurance companiesÂ have so much money at stake in cases of medical malpractice and many surgeons and hospitals are insured for many millions of dollars on their policies. These insurance companies have no intention of giving up their money without a fight. So, the important question of whether the doctor's actions caused the injury often results in a bitter fight which is commonly referred to as the "Battle of the Experts".
The insurance company will almost certainly hire their own medical expert or experts to testify that their doctor did not, in fact, cause the injury or death. They may even admit that the doctor was negligent in some way, but they will argue that the harm that followed was not the result of that negligence. Some of the ways that the defense may do this include arguing:
- Pre-existing Condition: They may argue that the patient already was sick or injured and that nothing their client did (or failed to do) to the patient made the situation any worse.Â For example, they may point out that a patient already had cancer or that a newborn baby already had a genetic orÂ birth injury.
- Intervening Cause: They may argue that another event or "superseding cause" was the actual cause of the injury, rather than the actions or inactions of their doctor.Â In this example, they might claim that a surgeon performed a surgery, but that the patient later slipped and fell, which caused complications.
- Patient Negligence: They may argue that the patient himself or herself is actually to blame in that they did or didn't do something that created the problem.Â They might, for example, claim that a patient was instructed to take certain medication or avoid strenuous activities, but didn't listen to his instructions, thus causing the injury.
Discuss Your Case with an Experienced Doctor Malpractice Attorney in Chicago
Lawsuits involving medical malpractice are usually highly contested cases with the medical insurance company disputing virtually every assertion of the injured patient or the family of the deceased. They will hire as many expensive medical experts as they think necessary in an effort to deny your claim. But for over 25 years, the attorneys affiliated with Mitchell S. Sexner & Associates LLC have been fighting and winning against these companies. Millions have already been collected for our clients and their families. Call today for free information at (800) 996-4824.