How to Determine a Medical Malpractice Case and Its Value

By | February 17, 2016

Often figuring among the most complex lawsuits, medical malpractice cases are difficult to identify and pursue. The circumstantial and legal yardsticks are rigid in such cases. There is a lot of ambiguity regarding the parameters of sub-standard medical care.

Under such circumstances there a few key points that can help one determine the viability of a medical malpractice case, and how to take it forward.

1. Breach of Standard of Care

Medical malpractice involves negligence in part of the medical professional. Negligence however is a broad term that can include a number of things like misdiagnosis, prescription of inappropriate treatment and faulty administration of treatment.

But as medicine is not supposed to be an exact and mathematical science, doctors are not legally bound to diagnose or treat an illness correctly every single time. So the question that emerges is, ‘how do I know or prove if I have a medical malpractice case?’

If you can prove with concrete evidence that the medical professional or institute in question breached the standard of care, you have a strong case.

According to Merriam-Webster’s Dictionary of Law, standard of care refers to the degree of care or competence one is expected to exercise in a particular circumstance or role.

Simply put, there are some established practices that the medical profession adheres to, when diagnosing or treating a person suffering from a particular condition. This standard may vary depending on patient’s age, geographic location, personal medical history, etc. However, these standards serve as grounds for appropriate medical care.

Let’s use an example to aid with understanding. Drugs that cause uterus muscles to contract forcefully, or those that lower the mother’s blood pressure cannot be administered during pregnancy by any medical professional. If such an action occurs, then it will be regarded as breach of standard of care, and a medical malpractice case.

2. Repeated Signs of Negligence

While your gut instinct is usually right about things, it obviously does not count for evidence. However, signs of negligence occur throughout the treatment. If you notice any of these patterns in your treatment, there are high chances that the doctor and the medical professionals have made a mistake in your case.

You experience tremendous pain after treatment

The medical professionals do not answer your question satisfactorily

The diagnosis, symptoms and treatment do not match

Your condition is worsening after treatment

The medical organization is not submitting the test reports or lab results you have requested

Your diagnosis and treatment is being executed on the basis of a single test result or lab report

Your recovery is not following regular patterns

3. Expert Medical Witness Testimony

Witness testimony undoubtedly lends a higher credibility to your malpractice case. In some states it is compulsory to have an expert medical witness to prove medical malpractice.

An expert medical witness is an individual who has experience with the treatment and procedure in question. He or she should also be someone who is in touch with the local medical community and is held in high regard.

The medical expert reinforces and establishes two important aspects of medical negligence.

The medical responsibility and duty of the doctor and the medical professionals towards the patient.

Establishing how the doctor’s action or lack of action amounted to negligence and breach of duty.

The expert medical witness will have to convince the jury about the above two elements of negligence.

4. Occurrence of Surgical Errors

While misdiagnosis is the most common and quoted form of medical negligence, a negligent act can also be a function of surgery. Surgical errors can have grave consequences.  Accidentally cutting an internal organ, or surgical cuts that result in urine, bile or other foreign fluids to enter the abdominal activity, or forgetting a foreign instrument like a scalpel in the body post-surgery are all examples of surgical errors. These can result in severe infections and sepsis, or a septic shock that can even result in a patient’s death.

A wrong-site surgery is another such example where the surgeon in question amputates the wrong appendage. These medical malpractice cases have life altering consequences for the patients and their family. An expert medical malpractice lawyer will ensure that the doctor or hospital involved has to pay due compensation and cannot force the victim and his family to shut up or accept an unfavourable financial settlement.

5. Nursing Malpractice Post Surgery

It is important to understand that medical malpractice is not just restricted to doctor’s actions, nursing malpractices are just as common and equally dangerous. Sometimes, the diagnosis, prescription, administering of medicines and surgery is all done correctly, but inappropriate medical conduct occurs during the post-surgery nursing.

If a nurse notices any abnormal developments in the patient’s health post the surgery or after intake of medicines, he or she needs to inform the doctor and the patient’s family immediately. In case they fail to do so, it amounts to medical negligence.

Similarly, incorrect administration of medicines (giving the patient wrong medicine or wrong dosage) and causing adverse reactions in the patients is also a medical fault.

Nursing malpractice cases also involve injuring a patient with improper use of medical equipment, burning the patient, and knocking equipment on the patient and causing injury.

What Are the Ramifications of a Medical Malpractice Case?

While these are some of the key points or parameters involving a medical malpractice, its legal ramifications are much more complex. It’s not enough to simply know that a medical procedure has caused injury or irreparable damage to an individual.

To prove a medical malpractice lawsuit and win it, a patient must prove the existence of these three elements.

a. A doctor-patient relationship

b. Doctor’s negligence during treatment

c. The Doctor’s conduct causing damage to the patient


Navigating through the complexities of a medical malpractice suit requires the guidance, counselling and support of an experienced medical malpractice lawyer. If you have faced medical negligence and errors, consult a medical malpractice lawyer immediately and decide on the viability of a case and how to pursue it to get a successful result.

About Author:

Michael Horst is an experienced trial Attorney at Van Sant Law. He has vast experience in commercial litigation, including construction disputes, automobile dealerships, commercial lending, and financial companies. He joined the law firm to help individuals and families pursue their claims against negligent people and companies, and to fight back against unfair insurance practices.

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