Do I Have a Medical Malpractice Case?

There are many factors which determine whether you have a provable medical malpractice case which is worth the time, effort and money it takes to successfully pursue these cases.

First, just because a bad outcome was experienced by the patient does not automatically mean that medical malpractice occurred. Complications are frequently experienced by patients which leave the patient in a much worse state of health than they otherwise would have been in. Most complications are not considered to be malpractice, but rather an unfortunate and unintended accepted risk of a procedure. In determining whether a patient has a medical malpractice case, it is important to understand that the patient has the burden of proving that malpractice occurred. Knowing you were the victim of medical malpractice and proving it are two very separate things. It does not matter how passionate a patient feels about the medical errors committed upon them if it cannot be proven in a court of law.

Proving a medical malpractice case in a court of law can be a very challenging and complex task. First, it requires the experience and help of a highly qualified medical malpractice attorney. Next, it requires documentation of the events surrounding the malpractice as they occurred. Third, it requires a complete and accurate medical record which specifically demonstrates the malpractice. Fourth, it requires that the claim is not beyond the statute of limitations. Finally, it requires the retention of top consulting and testifying medical expert witnesses.

The rules of evidence require that proof of a medical malpractice claim must be offered in a certain form. Generally, hearsay and other forms of unreliable proof are not allowed. For instance, prior lawsuits against a physician are generally not admissible evidence unless the prior acts are virtually the same as the act complained of in the instant case.

Moreover, the evidence that is admissible must be compelling. When a fact is disputed between the patient and the physician, each party will swear to their version of the fact. This "swearing contest" is almost always won by the physicians because jurors give doctors the benefit of the doubt. Thus, a case involving a swearing match is not a good case because the evidence is not compelling.

Jurors need to see unrefutable written evidence in the medical chart or on x-ray film that an error was committed. They also need to see convincing evidence that the error caused substantial damage. Any doubt about the nature of a claim is usually resolved in favor of the physician. Thus, it is imperative that a case be readily provable.