Your Guide to Medical Malpractice Claims: Chapter 2

How Can You Prove Medical Malpractice Occurred?

It is in your best interest to work with informed medical malpractice lawyers who understand the complexities involved with filing a medical malpractice claim.

Proving medical malpractice is not simple and straightforward. Securing legal assistance means you have knowledgeable advocates who understand case histories and can guide you with how to proceed.

In many cases, medical malpractice claims depend on testimony from skillful medical professionals — and attorneys have relationships with these professionals. In addition, malpractice claims often involve negotiations with the legal department of a medical professional’s insurance company, and attorneys should be knowledgeable in this area as well.

Below are qualifications necessary for proving medical malpractice took place.

1. A Doctor-Patient Relationship Must Exist

For medical malpractice to even be a consideration, an established doctor-patient relationship must have been in place.

A doctor who only worked on your care for one visit — like in an emergency room — can qualify. A circumstance such as this still sets up a relationship as long as you were legally the patient of the healthcare provider. On the other hand, casual advice from a family friend who happens to be a doctor would not be legally to blame if a negative consequence resulted from that advice.

The reason why it is important to prove a doctor-patient relationship is because doctors owe their patients a “duty of care” while doctors as a whole do not owe everyone this duty. If you meet a doctor in a consulting room, they owe you a reasonable standard of care. However, if you ask a doctor at a social gathering for their advice and you are harmed, the doctor is not bound by this standard and you may not have a claim.

You must be able to prove that you hired a doctor and that the doctor consented to being your doctor. In many cases, this is relatively simple to do. If you made an appointment, had a patient file in the doctor’s practice or saw the doctor in a professional setting, there is a doctor-patient relationship and there is usually documentation to help prove it.

Questions about the relationship may exist if you received care in an informal setting or if you received advice from a referral or consultation where you did not actually meet with the doctor.

Even if you were not seen by a doctor, the same standard applies to other healthcare professionals, such as nurses.

2. The Doctor Is Negligent

Not all medical outcomes are positive. Sometimes additional harm and/or injuries result from necessary treatments. However, an unsatisfactory result or experience does not mean malpractice took place. The doctor or healthcare provider must have been negligent in either diagnosing or treating a condition or injury to be held liable under the law.

Poor medical treatment and even medical mistakes do not constitute harm. In legal claims, courts generally listen to what doctors with a similar background would do in the same situation. To prove your claim, you must show that a reasonable doctor faced with the same circumstances would have acted in a way that would have likely prevented the injury. A medical expert may testify in such a case to show that they would have:

• Ordered a biopsy or other required medical testing to prevent misdiagnosis
• Warned a patient of treatment risks to prevent injury
• Not operated on the wrong site
• Ordered a different and more typical treatment for the presenting condition
• Not left a medical instrument inside a patient during surgery

To prove this, courts will generally ask for testimony from doctors. Since there are many medical treatments available and since doctors may make different decisions in different situations, it is important to work with the right witnesses.

In Pennsylvania, doctors, therapists and other medical professionals are expected to have a similar level of skill and knowledge and to offer a similar level of care offered by their peers in the profession. Professionals are expected to use up-to-date knowledge and skills and are expected to keep aware of today’s professional developments in their area of practice.

It is understood that some medical professionals have different skill levels or have a different level of education, but a peer must be able to agree that a doctor acted in a reasonable way and acted the way another doctor in that same field would have acted.

In fact, in Pennsylvania it is important to get medical expert testimony before you even file your claim. The state requires an affidavit from a medical expert before an initial complaint can be filed in a medical malpractice claim. The certificate of merit, as this affidavit is called, confirms that a licensed medical expert or practitioner affirms your doctor’s care did not reach reasonable and professional medical standards.

When establishing negligence in a medical malpractice case, it is important to note that negligence can involve either a doctor’s actions or negligent failure to act. Whether a doctor fails to order required tests a peer would order or does something negligent, such as using forceps with excessive force, he or she can be held liable.

It is also important to note that in a medical malpractice claim, intent does not need to be established. The doctor or medical professional only need to have acted in a way a reasonable doctor would have acted, and this needs to be established in court.

Many patients considering filing a medical malpractice claim worry about the paperwork they have signed as part of their treatment, which seems to hold doctors innocent of any negative outcomes. Patient consent forms, common before treatment and surgery, do not prevent an injured patient from filing a claim. No matter what documentation you may have signed, if you think you have a claim, contact an attorney to determine your legal options.

Contacting reliable medical malpractice lawyers is important because proving negligence can be challenging. Doctors may claim they acted in the patient’s best interests and may claim the outcome was unforeseeable. A medical malpractice negligence attorney can locate witnesses who can attest negligence occurred.

3. Negligence Causes or Directly Leads to the Injury

Even if a doctor-patient relationship was established, and the doctor was negligent, medical malpractice may still not be a factor in an unsatisfactory outcome. In some situations — especially if a pre-existing, masked or unknown condition existed — there may have been factors involved in the result that fall outside of a doctor’s negligence.

For this reason, to prove medical malpractice, it must be proved the negligence that took place was the direct cause of the harm, injury or death. A clear correlation must be made between a doctor’s actions or their failure to act and your injury.

Unfortunately, in many cases, patients who visit a doctor already have a medical condition and it can be difficult to determine whether these patients would have been able to avoid injury, even if negligence did not take place.

This can especially be a point of contention in cases of delayed or missed diagnoses. If a doctor is negligent and fails to diagnose cancer, for example, it can be difficult to firmly establish that the negligence in finding the cancer and not the cancer itself is what led to harm.

In these situations, patients may decide to prove that the doctor’s negligent actions or omissions increased the risk of harm. This may be more possible to prove. It may be challenging to prove that a missed cancer diagnosis led to a death or fatal diagnosis, such as late-stage cancer. However, the doctor can still be held liable if it can be established through expert medical testimony that the doctor’s negligence increased the patient’s risk of death.

In Pennsylvania case Hamil v. Bashline, it was found that jurors could establish liability in cases where a doctor significantly increased a patient’s risk of injury or illness. Mitzelfelt v. Kamrin found that the “increased risk” theory could only be used if a patient has a preexisting condition which makes a direct causation claim impossible.

Working with a medical malpractice law practitioner is important to help establish the link between injury and a doctor’s omissions or action. An attorney can find expert witnesses and research to establish the relationship between a medical experience and an injury.

4. The Injury Leads to Harm

Sometimes negligence does not lead to harm. On its own, negligence does not mean a patient is eligible for compensation.

Malpractice can be a possibility if certain results arise from negligence. These things include:

• Physical pain
• Medical bills that are not a part of, or are above and beyond, the standard treatment
• Mental pain
• Additional treatments
• Unexpected lost wages result from the negligence
• Disfigurement
• Humiliation
• Future medical costs, such as the costs of a child’s care after a birth injury
• Loss of enjoyment of life

Medical malpractice damages fall into a few categories. Compensatory damages refer to the damages which have a specific cost attached to them. Medical bills and lost wages fit in this category. Non-economic damages refer to intangible damages, such as mental anguish. In some cases, medical malpractice cases may also result in punitive damages. These are less common but they are designed to punish healthcare practitioners who break the law, commit fraud or take part in malicious or intentionally harmful actions toward patients.

For compensatory and non-economic damages, there are no caps. There is no limit to how much a court can award a patient for medical malpractice. Punitive damages are limited to 200 percent of the compensatory damages. Of any punitive damages granted, 25 percent are earmarked for the MCARE Fund. This special fund pays injured patients in cases where a doctor’s malpractice insurance does not cover the full cost of damages awarded by a court.

The harm which a patient suffered must be specific and attorneys must be able to put a general price tag on it. Working with a medical malpractice attorney can assist with proving the injury led to harm. An attorney can also help establish the cost of the damages.

Because of the complexities involved in proving medical malpractice negligence took place, it is usually in the best interest of the patient or the family of the patient to work with an attorney who has a background in medical malpractice law.

If you need a medical malpractice attorney in Pennsylvania, contact KBG Injury Law for a consultation. Our team of attorneys can take on cases involving medical malpractice resulting from birth injury claims, misdiagnosis, incorrect treatment, surgery injuries and more.

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KGB Injury Law has handled many medical malpractice claims stemming from:

• Failure to diagnose cancer, heart attack, stroke or other medical conditions
• Birth injury
• Overmedication or under-medication
• Incorrect medicine administered
• Incorrect dosage of medication
• Surgical errors
• Post-operative negligence
• Failure to set a bone correctly
• Failure to refer a patient to experts or specialists
• Failure to order needed medical tests
• Implements left in a patient during surgery
• Incorrect diagnosis
• Cerebral Palsy
• Radiology errors
• Failure to treat a medical condition
• Anesthesia-related injuries
• Preventable infection

If you have been injured in an emergency room, through medical treatment or through treatment from a doctor, nurse, nurse practitioner, therapist or any medical professional, contact KBG Injury Law for a consultation. Our legal team has relationships with a range of medical professionals from different areas of practice, so we can find witnesses for a variety of claims, from orthopedics to cardiology, oncology and more.

At KBG Injury Law, we prepare each case carefully and we work closely with injured patients. We have a history of securing favorable outcomes for plaintiffs and we always treat clients with respect and dignity. Our team has handled medical malpractice claims for over 30 years and we take care of all the details, from finding trusted witnesses in your case to subpoenaing medical documents. We negotiate settlements and go to court when needed.

In all claims, our goal is to get you the results you deserve.