Overview Of The Medical Malpractice Litigation Process


Torts are a body of law that which address civil wrongs.  If someone has been wronged by another and a law speaks to that wrong, the victim can commence civil action to seek compensation.  Torts do not include contract disputes, nor do they address criminal acts.

Negligence is a type of Tort.  Negligence occurs when a person owes another a duty, breaches that duty, and causes the victim to suffer injury and damages.  Medical malpractice is a form of negligence.

Experienced Kingston medical malpractice attorneys fully understand that medical malpractice is a negligent act committed by a medical professional against a patient with whom there is a doctor patient relationship.  As soon as that relationship is formed, the treating medical professional must provide medical care to the patient in accordance with accepted medical standards.

Those standards are propounded by the medical profession itself.  Therefore, when a patient claims that a doctor owed him or her a duty and breached that duty, the patient must produce a medical expert who will testify to such.  This expert would be another duly licensed medical professional that practices the same type of medicine that the offending medical professional was practicing when he or she harmed the patient.  This doctor testifying on behalf of the patient must also be from the same community as was the offending doctor.  This is because medical standards will vary from location to location and are heavily dependent upon the facilities and resources available to a doctor within that specific community.

In short, for a jury to understand a doctor’s duty and the standards in a medical profession, a doctor will have to explain it to them.  This expert will also explain how that standard was breached during the course of the plaintiff patient’s medical treatment.

Some important distinctions must be discussed as well.  Even if there is a breach, there must be an injury, and if there is an injury, the patient’s injury must have been caused by the doctor’s deviation.  Additionally, the injury must have led to the patient suffering damages.

These are important because there could be a deviation from accepted medical practice that causes no injury at all.  A deviation alone is not enough.  If the patient isn’t injured, there can be no sufficient claim for medical malpractice.  Moreover, the deviation must be the proximate cause of the injury; sufficiently related to the deviation.

Lastly, the distinction between injury and damages should be understood as well.  The words aren’t interchangeable in terms of medical malpractice.  The injury is the physical or emotional harm, or an economic loss.  A synonym for injury here is “loss”.

Damages are what a jury would award the injured patient.  They are the monetary expression of a patient’s injury.

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.