Establishing a Medical Malpractice Case and Proving Fault in Ohio April 17, 2012.
If you received medical treatment from a professional and feel that you were not treated fairly during the procedure, or that negligence was involved in the situation, then you may have a legitimate medical malpractice case. Medical malpractice can be proven in court under several theories.
Establishing Medical Negligence
It is believed that many cases of medical malpractice stem from the negligence of another party, such as a medical professional.
In order to establish a clear case, the victim (plaintiff) and the medical malpractice attorney must prove several points:
- the existence of a patient/doctor relationship;
- a breach of duty, or evidence of deviation from standard care;
- a relationship between the doctor’s deviation from standard care and the patient’s injury; and
- actual injury.
Negligence can come in the form of an injury that occurred during a procedure or surgery, or from medical devices or prescriptions in which a medical professional gave the patient incorrect instructions regarding the use of a medical device. Giving a patient an incorrect drug or dosage can also constitute a medical malpractice case.
This is because your doctor should be well-informed about any drugs before prescribing them to you and therefore he or she must be able to adequately determine if the drug is right for your situation. If you have been the victim of this type of negligence, you should contact an Ohio medical malpractice attorney.
Informed consent is also a situation that may lead to a medical malpractice case. Informed consent means that the patient gives the doctor the go-ahead to proceed with a specific surgery or procedure, after they have been informed of the risks, benefits and any alternatives.
This agreement must be in writing. Failure to perform a procedure without a patient’s written consent is not only negligent, but can also constitute battery.
Proving Fault in a Medical Malpractice Case
Proving fault is difficult in a medical malpractice case because of several factors.First, medical experts in the same field as the defendant must be hired to testify and inform the court of what should have been done under professional medical standards.
In addition, the medical reports that would prove any wrongdoing are written by the defendant. Because they are typically the only ones present during the procedure, they can describe the incident any way that they want, and they obviously do not want to place the blame on themselves.
Medical professionals may also find ways to modify the medical reports and cover themselves so they are not accused of any wrongdoing. It takes a very experienced medical malpractice attorney to handle this type of case and use any evidence to their client’s advantage.
However, because the law realizes how difficult it can be for a patient to prove medical negligence, plaintiffs have the right to use a doctrine called res ipsa loquitur. In Latin, this means "the thing speaks for itself." To use this doctrine in the court of law, an injured patient just needs to prove that an injury or other type of result occurred during a procedure, and it would have only occurred because of the negligent actions of another party.
The plaintiff must prove the following:
- there is no obtainable evidence of the actual cause of injury;
- the plaintiff did not cause the injury to himself or herself;
- the injury does not typically occur in the absence of negligence;
- the defendant could control the cause of the injury; and
- the injury was not caused by something in which the defendant had no control over.
Once the res ipsa loquitur doctrine is used in court, it is then up to the defendant to prove that he or she did not cause the accused negligence.