Experienced Kingston Medical Malpractice Attorney Discusses The Plaintiff’s Burden In Winning A Negligence Case


All medical malpractice cases require the plaintiff-patient to properly plead and prove several necessary elements.  There must be evidence sufficient to prove: 1. The defendant owed a duty of care to the plaintiff; 2. That the duty was breached; 3. That the breach was the proximate cause of the plaintiff’s injuries; 4. That the plaintiff suffered damages.

Most attorneys are familiar with this, but only the experienced medical malpractice attorney will know the correct and court accepted ways to prove these elements.

Proving that the defendant owed a duty to the plaintiff requires investigation into the plaintiff’s medical history to see which medical professionals treated the plaintiff for what ailments.  When a plaintiff is complaining about a specific injury, it is only the medical professionals who treated the patient in relation to the harm now complained of who can be held liable for damages.  In short, all of the doctors with whom the patient had contact would not necessarily be sued; just the ones who treated him/her in relation to the harm complained of.

Once a doctor-patient relationship is proved, the duty owed to the patient must be proved.  This can only be done correctly when an expert in the same field and within the same locality as the defendant-doctor testifies as to the professional standard in the medical field.  The experienced attorney will also know that the defense will use their own experts; therefore, medical malpractice attorneys must be adept at understanding juries.

Now that the standard is proved by expert testimony, additional testimony from experts is needed to prove a breach of that standard.  Other doctor’s in the same field and locality would need to testify that other reasonable and prudent practitioners would not have done what the defendant-doctor is alleged to have done.

Proximate cause must be established as well.  This type of causation is typically said as being the “natural, direct, and uninterrupted” basis of the plaintiff’s injury without which the injury would not have occurred.

Finally, the plaintiff’s damages must be proved.  This is because there can be no recovery where damages weren’t suffered.  In medical malpractice cases, damages are typically pain and suffering, medical bills, lost wages, lost earning potential due to permanent disability, etc.  Loved ones may have redress through wrongful death and/or survival actions.  Loved ones may also recover for damages directly related to the malpractice; for example consider recovery based on lost companionship or loss of consortium.

The damages noted above are compensatory in nature; they attempt to restore the plaintiff to a position akin to a level that he/she would have been in had the negligence not occurred.  Also know that damages could be punitive as well if the defendant’s actions were wanton, reckless, or without disregard for the patient’s well being.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.