Proving Medical Negligence January 4, 2010.

One of the most often asked questions when it comes to the possibility of filing a medical malpractice lawsuit is, "Who proves medical negligence?" To find out the answer, speak to a qualified medical malpractice lawyer.

Medical malpractice isn’t just someone who gives out the wrong bandage for a small cut; it’s far more serious and may have deadly consequences. "Medical malpractice is an area of law that deals with claims filed against a health care professional. This could be a physician or a hospital. While the term medical malpractice may be used when referring to such cases, medical negligence is also used because it also broadly applies to other health care professionals as well, such as dentists," outlined Christopher Mellino, of the Mellino Law Firm LLC in Cleveland, Ohio.

"One of the tricky things about medical malpractice laws is the fact that each state has their own laws which tend to vary from Illinois. However, there are some things about medical malpractice/medical negligence lawsuits that are the same no matter where a patient lives," Mellino added.

The question of whether or not medical malpractice has taken place is predicated by the determination of whether or not the patient has been harmed or injured through an improper inaction or action by a health care professional or a medical establishment. Interestingly enough, liability for these kinds of injuries may be established under several legal theories.

"Most med mal cases proceed on the basis that a physician or nurse, etc., used negligence treating a patient. To prove medical negligence, the patient carries the burden of proof. So the injured patient/plaintiff or their family has to prove several things," outlined Mellino. Those several things, if the negligence resulted in the patient’s death, are that there was the existence of a duty owed by the medical professional; the professional deviated from an accepted standard of care; and there was a link between the professional’s deviations from the standard of care relating to the patient’s injury.

"Proving there was a duty of care owed to the patient by the professional is slightly easier to prove if the patient/plaintiff was in hospital at the time of an incident. Hospital patients should be watched 24 hours a day, seven days a week," commented Mellino.

If there was a deviation from the accepted standard of care, this is viewed as a breach of duty to the patient and could involve a misdiagnosis; failure to diagnose; the wrong medications given; or improperly reading test results. Was there a link between a deviation and the care relating to a patient’s injuries? "While this may sound confusing, it means how did the error compromise or cause an injury to the patient? The injury may be permanent or temporary," noted Mellino.

Make no mistake, med mal cases are difficult to win, but not impossible. Once it is shown that a physician’s conduct was below the generally accepted standard of medical care, the case is usually able to proceed to a successful conclusion for the plaintiff. Getting a med mal cause to court and proving it takes the skills of a highly qualified medical malpractice lawyer.