If you’re unsure about whether or not you have a medical malpractice case, you’re not alone. Many others face the same dilemma. While some medical malpractice cases are straightforward, others are more complex and with disagreement on issues surrounding informed consent. Only a few courts have decided whether doctors have the legal duty to inform patients that another doctor may have more experience and skill in performing a specific surgery. At the same time, many physicians argue that they should not have to disclose experience unless the patient inquires about it.

The case of Billy Boone determined that the surgeon’s experience and skills can make a difference to the patient, and the Maryland Court of Appeals decided that Billy Boone had the legal right to know that his surgeon didn't have extensive experience in performing his type of ear surgery. In addition, the surgeon failed to disclose that the surgery would be more difficult due to a hole in his skull from a previous surgery might even result in brain damage and a sub-specialist known as a neurotologist would be a better fit. This win makes it easier for other patients to demand the information needed in order to make a sensible choice of surgeons.

What is Medical Malpractice and How Common is it?

Medical malpractice refers to professional negligence by health care professionals or providers in which the medical treatment was substandard, which resulted in harm, injury or death to the patient.

The most common medical negligence cases involve misdiagnosis, health management, medication dosage and aftercare. Under medical malpractice law, patients can receive compensation resulting from harm caused due to substandard treatment. In the United States, diagnosis errors cause up to 160,000 deaths each year. Diagnosis errors frequently cause harm and lead to the largest verdicts. Between 1986 and 2010, over $38 billion was paid out in diagnosis-related claims. According to Dr. David E. Newman-Toker, "This is more evidence that diagnostic errors could easily be the biggest patient safety and medical malpractice problem in the United States. There's a lot more harm associated with diagnostic errors than we imagined." There are somewhere between 15,000 and 19,000 medical malpractice suits filed against U.S. physicians each year.

According to a recent report published in Health Affairs, one in every three hospitalized patients in the United States experience a hospital error. Common hospital errors included:

• Giving patients wrong medication
• Leaving things inside patients’ bodies after surgery
• Administering the wrong dosage of medication
• Potential fatal staph infections
• Pressure ulcers
• Misdiagnosis

The Elements Needed to Prove Medical Malpractice

There are several elements needed to prove a medical malpractice claim.

• Existence of Patient-Doctor Relationship: This element of a medical malpractice typically is easy to establish and usually goes unchallenged. The existence of a patient-doctor relationship gives rise to the physician’s duty to provide competent care. If a doctor provides some type of diagnosis or treatment, these actions prove that a patient-doctor relationship existed.
• Proof of Negligent Care: The element of substandard care is crucial to any medical malpractice claim. The issue here is that the doctor acted with the care and skill that a similarly-trained medical professional would have demonstrated under the same circumstances. Often, other expert witnesses such as other doctors in the same field, will be needed to testify what a reasonably knowledgeable doctor would have done under the same circumstances. Clinical practice guidelines published by medical groups can also be used as evidence to establish the standard of care. In addition, expert witnesses will need to present detailed testimony to methodically show how the physician failed to provide care that measured up to the standard. There needs to be a clear picture of the doctor’s negligence.
• Link between Physician’s Negligence and Patient Injury: It’s not just enough to show that a physician make the kind of mistake that most other physicians wouldn’t have made; there must be a direct link between the negligence and the injury. It must be shown that the physician’s actions or failure to act directly caused injury and aren’t related to an underlying medical condition. Often, plaintiffs use expert testimony to establish a direct link between the physician’s negligence and injury.
• Proof of Patient Damages: In medical malpractice cases, there must be quantifiable proof of damages. These damages may include income lost from the inability to work, the cost of additional medical treatment and pain and suffering. Proving damages typically includes providing medical bills, income reports and medical reports from other health care professionals.

All around, there must be proof by a preponderance of the evidence. This means that the elements demonstrate that the evidence is more likely than not to be true. It’s an easier legal standard to meet than proof beyond a reasonable doubt in criminal cases. However, there are unique hurdles in medical malpractice cases like filing a certificate of merit and getting the claim past a medical malpractice review board. In addition, medical malpractice cases usually involve complex medical issues. For these reasons, it’s wise to consult an experienced attorney to first discuss whether or not you have a viable malpractice claim.

How an Experienced Medical Malpractice Attorney Can Help

Medical malpractice lawsuits differ from personal injury cases. Medical malpractice claims involve both law and medicine. Experienced medical malpractice attorneys have a solid understanding of medicine and its terminology, are able to evaluate medical documents, know what experts to consult and are able to anticipate the tactics of the defendant. From the beginning to the end, experienced medical malpractice attorneys review the information to determine whether you have a claim, collect additional evidence to support the claim, determine the claim’s value, identify potential liable parties, help you understand your legal rights and options and handle the complex court rules and procedures.

It’s important to note that even though a major portion of the lawsuit will be based on expert witnesses, evidence and testimony, having an experienced medical malpractice attorney means you have an attorney who can rebut the claims and testimony of the defendant. The ability to negate the other side is a key factor in the outcome of a case. Likely, the defendant will hire an attorney who has defended other malpractice claims before. Having an experienced medical malpractice attorney levels the playing field.