Posted by Bill Sandweg on 17 May 2021.
This is a question I hear on an almost daily basis. In order to answer it, we must first discuss what is meant by “having a medical malpractice case.” There is a lot of ground to cover and I am going to take two posts to cover it.
Technically, anyone who has been injured by medical malpractice has a malpractice case which could be pursued in court. However, a malpractice case which has a chance of being successful in court requires quite a bit more.
Medical malpractice cases are among the most expensive and complex cases an individual can have in our civil justice system. They exist at the intersection of law and medicine.
In order to prove that you have been the victim of medical malpractice, you must start by proving that the health care provider in question fell “below the standard of care.” The standard of care is that minimum standard which would be observed by a similar health care provider in the same or similar circumstances. If you are scratching your head at this point and asking, “What in the heck does that mean?”, you are beginning to appreciate the nature of the problem.
Proof of the standard of care is the cornerstone of a medical malpractice case. If you cannot prove a breach of the standard of care, you cannot win. The standard of care is almost never written down. It is what health care providers say it is. It differs from specialty to specialty. In other words, what a trained and experienced cardiologist might do may be different from what a family practice doctor would do in the same situation. You have to prove that a reasonable provider in exactly the same specialty or area of practice as the defendant would have done things differently than the defendant. Put another way, if any reasonable provider in the same specialty as the defendant would have done things the way the defendant did them, you lose.
The standard of care being what providers say it is gives them a big advantage. Since it is not written down, it gives health care providers room to argue about what the standard really is. As the plaintiff, you have to prove what the standard of care is in your case. You do this by bringing in an expert witness in the same medical specialty as the defendant to testify that no reasonable provider in that specialty would do what the defendant did. The defendant gets to come in an say that what she or he did was a good example of the standard of care. The defendant also gets to call their own expert witness to testify that lots of providers do what the defendant did. As you can see, the defendant gets two witnesses to say the defendant complied with the standard of care as compared to your one. To win at trial, the jury has to decide that your one witness is more believable than their two witnesses.
I will cover medical causation and the remainder of the analysis next week.