January 11th, 2022
Posted By
Rhett Fraser
When a Doctor’s Liabili…

Medical malpractice is what lawyers call a “cause of action.” A cause of action is a set of facts that allow one person to bring a lawsuit against another. If you can establish these basic facts, your lawsuit can move forward. If one or more of the necessary facts is missing, your lawsuit will fail. Every cause of action, including medical malpractice, has elements that must be proven for the case to be successful. We frequently discuss the elements of medical malpractice in this blog because they are so important to understand. No matter how strong some of the elements of medical malpractice in a case, unless they are all present — and proven — your case will be unsuccessful.

Elements of Medical Malpractice

There are four elements to a medical malpractice claim:

  • Duty of care, which is created by the doctor-patient relationship and is straightforward to prove
  • Breach of the duty, meaning that the doctor did not treat the patient as a reasonable doctor in a similar situation would have done. This element requires showing what the “standard of care” is and how the doctor failed to meet it.
  • Injury caused by the breach. This is sometimes treated as two separate elements: proving that the patient suffered injury, and proving that the injury was caused by the doctor’s breach of duty. This is also referred to as the doctor’s liability for the injury.
  • Damages that result from the injury. These may include everything from the cost of further medical treatment to repair the injury, lost wages, the cost of help for services the injured patient can no longer perform for him- or herself, the cost of necessary equipment like wheelchairs or alterations to the home so that the patient can function, pain and suffering, and more.

Every element of a medical malpractice case is important, but many people tend to get hung up on the issue of liability, especially if the doctor’s negligence or misconduct was serious. However, it is essential not to overlook the damages portion of the case. Why? It is one thing to prove that your doctor did something wrong; without proving what your damages are from the injury, you may not receive the compensation you deserve for the injury.

Why Damages Matter

Let’s say, for the sake of argument, that you prove that your doctor was negligent in performing a surgery on your arm and you suffered an injury that required another surgery and six weeks off of work. If you file a claim against the doctor for medical malpractice, the doctor’s insurer might offer a settlement that covers your medical bills for the second surgery and your lost wages for the weeks you could not work. That might seem like a pretty decent outcome in the moment.

Unfortunately, if you accept the first settlement that is offered, you will waive the opportunity to later seek additional recovery if it turns out that your damages are worse than you initially believed. For example, it could turn out that your second surgery was unable to completely repair the injury from your doctor’s negligence, leaving you with persistent pain and the inability to resume your former duties at work. In short, it might emerge that your damages were much greater than you initially believed them to be.

This is a common occurrence. Most people who are injured by negligence just want to get past their injury as quickly as possible and resume their normal life. Few people want to think about, much less accept, the possibility that their life is changed forever or that recovery could take months or years. Unfortunately, wishing doesn’t make it so, and you cannot simply will yourself to have a swift and complete recovery.

Proving Damages in a Medical Malpractice Case

It can be difficult to know what your future damages will be. Will you need ongoing physical therapy? How much function are you likely to recover? Will you be able to go back to work? How soon? Will you have permanent pain or other limitations? The answers to those questions will determine what you may be entitled to recover.

If your case goes to trial, a jury will determine the amount of your damages. It is important to give them the facts they need to arrive at an award of damages that will justly compensate you and allow you to move forward with your life. That said, most medical malpractice cases do not go all the way through trial; many settle before or even during trial. Even so, it is very important to be able to establish what your damages are and what future damages are likely to be. Having a fact-based sense of your likely damages will enable you to know whether a settlement is reasonable or not.

Working with an experienced medical malpractice attorney is key to identifying and proving damages in a malpractice case. Not only has an experienced attorney handled many cases with similar issues, he or she understands what courts and juries need to see in the way of evidence and has relationships with expert witnesses whose testimony can make or break a case.

Remember: a successful medical malpractice case is about more than being able to prove a doctor’s liability for your injury. Equally important is being able to prove what you should be able to recover because of that liability. If you believe that you have been injured by medical malpractice, please contact The Fraser Law Firm P.C. to schedule a consultation regarding all aspects of your case.