Determining and Proving Liability in Medical Malpractice Lawsuits Staff Profile Picture
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Medical malpractice is one of the most unfortunate incidents that can happen to those seeking medical treatment or care from a doctor or other healthcare provider. According to a study conducted in 2010, medical errors cost the United States more than $19 billion. However, it can be challenging in some cases for a medical malpractice attorney to prove that the healthcare provider’s was negligent or that those negligent actions are what caused harm or death. In this article, we will discuss how a medical malpractice attorney can prove liability in your case, as well as the most common types of medical malpractice lawsuits and how to build your case. Additionally, you will find helpful resources that can give you more guidance and assistance as you make your case.

How Your Medical Malpractice Attorney Proves Liability

To successfully win a medical malpractice lawsuit, your attorney must be able to prove that the medical provider was negligent, and that the negligence was the cause of the injuries at issue.  In this section, we will cover how your attorney can prove that a medical provider was negligent, which is a necessary step to proving liability in court.

Use Negligence to Prove Fault

In medical malpractice cases, a medical provider is negligent if he or she fell short of the expected standard of care.The medical malpractice lawyer must establish the following components in order to establish such a breach of the standard of care:


The healthcare provider had a duty to provide a certain level of care to the patient. This duty is typically established when the healthcare provider agrees to treat the patient or enters into a professional relationship with them.


The healthcare provider breached their duty of care by failing to provide treatment that met the standard of care. The standard of care is the level of care that a reasonably prudent and skilled healthcare provider in that particular medical specialty would have provided in the same or similar circumstances.


The healthcare provider's breach of duty caused the victim's injuries or harm. The attorney must show that the patient's injuries would not have occurred if the healthcare provider had met the standard of care.


The victim suffered damages as a result of the healthcare provider's breach of duty and resulting injuries. These damages may include past and future medical expenses, lost wages, pain and suffering, and other losses.

The medical malpractice lawyer must use expert witnesses, such as doctors or other medical professionals, to define the standard of care and demonstrate how the healthcare provider's actions fell short of that level to prove negligence. The attorney can  also draw on witness testimony, medical records, and other records to strengthen the case.

Other Ways To Prove Fault and Liability in Court

In addition to negligence with expert testimony, there are other less common methods to establish fault and liability in court. Alternative legal theories and methodologies can be used to prove fault and responsibility, even though negligence is most often used to establish fault in a medical malpractice case.

Here are a few additional ways that a medical malpractice attorney may use to prove fault and liability in court:

Intentional Misconduct: There are some rare cases when a medical malpractice lawsuit may be based on intentional misconduct. This may occur when a healthcare provider intentionally harms a patient or engages in unethical behavior, such as sexual misconduct or financial exploitation.

Res Ipsa Loquitur: This Latin phrase translates to "the thing speaks for itself." It is a legal doctrine that allows a plaintiff to establish negligence without having to bring on an expert to prove the specific details of how the injury occurred, or that a breach of the standards of care was involved.. Res ipsa loquitur may apply in cases where the injury is so unusual or unexpected that the law presumes negligence on the part of the healthcare provider.

Vicarious Liability: In some cases, a healthcare provider's employer or hospital may be held liable for the provider's actions. This is known as vicarious liability, and it may apply if the healthcare provider acted within the scope of their employment when the harm occurred.

Common Types of Medical Malpractice

In the next section, we will describe some of the most common types of medical malpractice lawsuits. If you think you or someone you know has been the victim of one of these types of malpractice, contact a medical malpractice attorney to find out your next steps. 

Failure to Diagnose

When a healthcare provider misdiagnoses or delays correctly diagnosing a patient's medical condition, the patient may suffer an injury. This is referred to as failure to diagnose, misdiagnosis, or delayed diagnosis. This claim may occur in a variety of healthcare settings, including  hospitals, emergency rooms,clinics, and doctor's offices.

A healthcare professional may miss the proper diagnosis of a medical condition'for a variety of reasons. For instance, it might be challenging to appropriately diagnose some medical disorders since their symptoms can resemble those of other conditions. Additionally, early diagnosis of some medical conditions can be difficult because they may not exhibit clear symptoms. Additionally, medical professionals might neglect to request the necessary tests, fai torefer the patient to a specialist for additional assessment, or misread test or imaging results..

Patients may experience severe repercussions if a diagnosis is missed or delayed. Treatment that is given too slowly or inappropriately can worsen a patient's condition, and in certain situations, it can even result in death or lasting injury. For instance, if cancer is not detected in its early stages, it may spread and become more difficult to treat.

A patient must demonstrate that the healthcare professional fell short of the standard of care expected of them in order to establish a failure to diagnose or delayed diagnosis claim. In addition, it must be proven that the patient suffered harm or injury because the physician’s failure to make that proper diagnosis. 

Medication Errors

When a healthcare professional breaches the standard of care when prescribing, dispensing, or giving medication to a patient, it is considered medical malpractice. Medication errors have the potential to seriously injure people and even endanger their lives.

Medication errors can take many forms, such as prescribing the incorrect medication or dosage, overlooking possible drug interactions, giving medication by the incorrect channel or at the incorrect time, or mislabeling medication. Any step in the medication process, from prescription to administration, is susceptible to medication errors.

Patients may suffer severe side effects as a result of medication errors. A drug error may cause allergic responses, unfavorable side effects, or even patient overdose. Medication mistakes may occasionally result in long-term health issues or even death.

A patient must demonstrate both that the healthcare provider fell short of the standard of care required of them when prescribing, dispensing, or administering medication,and that the error resulted in harm or injury to the patient.

Improper Treatment

When a healthcare professional fails to follow the acknowledged standard of care when treating a patient's illness, it is considered medical malpractice. This can occur, for example, when the provider fails to run the correct tests,  doesn’t take a patient’s complaints seriously, applies the incorrect medical treatment, operates on the wrong body part, or misuses medical equipment. A bad course of treatment can impair a patient's health, cause problems, or even result in death.

As discussed above healthcare practitioners have a duty to deliver care in accordance with the recognized standards of the medical community. A healthcare provider may be held accountable for medical malpractice if they deviate from this standard of care and harm a patient.

Examples of poor courses of treatment include giving a patient a prescription for a drug to which they are allergic, prescribing the wrong dosage, operating on the wrong body area, and using medical equipment incorrectly. 

In order to establish a claim for an improper course of treatment, a  patient must demonstrate both that the healthcare provider fell short of the established standard of care and that the patient suffered pain or injury as a result of that deviation from the standard of care

Failure To Warn Patients of Risks

When a healthcare provider neglects to adequately inform a patient about the risks and benefits of a medical operation or treatment, and the alternatives to that treatment, it may be considered a form of medical malpractice, commonly referred to as failure to acquire informed consent.. Patient harm or injury may come from a healthcare provider's failure to obtain such informed consent from the patient.

A legal and moral requirement in the medical industry is informed consent. It entails a healthcare professional advising a patient about the advantages and disadvantages of a medical operation or treatment, as well as any potential alternatives. Before beginning the therapy or procedure, the healthcare provider must get the patient's informed permission.

The patient might be unaware of the risks associated with the therapy or operation if a healthcare provider does not seek informed consent. Patient harm or injury may result from the lack of that informed consent. For instance, if a patient is not made aware of the dangers of a certain prescription, they may experience severe side effects that could have been avoided.

In order to make a claim for a failure to obtain informed consent, A patient must show that the healthcare practitioner did not obtain that informed consent and that the healthcare provider's failure to do so resulted in harm or injury to the patient.

Resources for Injured Patients

Medical malpractice lawsuits can be very complex and time consuming, as well as emotionally and financially draining. If you or someone you know has been the victim of medical malpractice or negligence, getting the correct information for your next steps can make all the difference in the world. In this section, you will find valuable resources to help you get more information to take the next steps in your potential medical malpractice lawsuit. 

National Medical Malpractice Advocacy Association

The National Medical Malpractice Advocacy Association (NMMAA), established in 2013, was started by a group of individuals who had either experienced medical malpractice themselves or knew someone who had. They assert that the NMMAA is the nation's first nonpartisan civil rights group of its sort, with patient advocates around the country. Through partnerships with local and national organizations all across America, their organization dedicates itself as a national network to ending medical malpractice. The NMMAA is the first and only organization that has earned multiple proclamations for its support of medical malpractice from states throughout the country. Learn more about their mission at their official site, located here.

Patient Advocacy Foundation

This national nonprofit organization provides free case management services and financial assistance to patients diagnosed with a chronic, life-threatening, or debilitating illness, including those affected by medical malpractice. PAF was founded in 1996 with the mission of helping patients navigate the healthcare system and obtain access to quality care, treatment, and support. The organization's core programs include patient services, co-pay relief, scholarships, and advocacy. Learn more about their mission and the services they offer to victims of negligence and malpractice by visiting their website, located here.

Patient Safety Action Network

The Patient Safety Action Network (PSAN) is a nonprofit organization dedicated to promoting patient safety and preventing medical errors. The organization was founded in 2016 by patients and families affected by medical errors and malpractice. The mission of PSAN is to advocate for policies and practices that improve patient safety and reduce the occurrence of medical errors. The organization works to raise public awareness about the importance of patient safety, and to encourage healthcare providers, policymakers, and other stakeholders to prioritize patient safety in their work. Learn more about their mission on their website located here.

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