Medical malpractice (or medical negligence) is a complex area of the law.
Negligence, by definition, is a civil tort (or a civil wrong). Patients that have been injured as a result of negligent medical care can bring lawsuits against physicians (or nurses, hospitals and/or other medical practitioners) to recover compensation for such injuries in the form of damages. She who alleges, however, bears the onus of proving such an allegation.
Therefore, to be successful in a medical malpractice action, a plaintiff must first establish that the medical practitioner in question cared for or treated her – i.e. that that practitioner owed her a duty of care.
Next, the medical practitioner must have acted or conducted himself or herself in a substandard way or manner. Physicians, for example, are not expected to be perfect, but they are expected to, at the very least, act and conduct themselves like a reasonably prudent physician. What is reasonable depends on the circumstances of each particular case. Also, if that physician is a specialist, the standard expected of that physician is that of a reasonably prudent specialist. This is not at all, as you have probably figured out by now, rocket science. That is because specialists, who hold themselves out as possessing a special degree of skill, knowledge and competence, must exercise the degree of skill, knowledge and competence of an average specialist in their respective field.
Therefore, if a physician is found (by an expert peer) to have acted or conducted himself or herself below the expected standard, the next question that must be answered is whether such substandard conduct, in fact, caused the injuries complained of.
Factual causation, simply stated, means that the question asking whether the injuries complained of would not have happened but for the substandard conduct, must be answered in the affirmative. Leaving legal causation aside, which must also be satisfied (or answered) in the affirmative, causation can often cause problems in medical malpractice (or medical negligence) cases. This is not difficult to see why, especially when there may be comorbidities (or pre-existing disease or conditions) present that may cloud the issue of whether the injuries complained of were, in fact, caused by the substandard conduct being attacked.
What is the degree of confidence required to prove all of this?
What is the standard or proof? It’s the civil standard of the “balance of probabilities,” often referred to as the “50% + 1” threshold. What this means is that you – and it is you, as it is she who alleges that must prove – do not require medical certainty – i.e. 100% – to prove a case of medical malpractice (or medical negligence), despite some medical practitioners preferring to address medical issues using the confidence of medical certainty.
Of course, as with any blog post, you cannot and should not to walk away thinking (or being left with the impression) that this post is anything but a very general and overly-summarized overview of this complex area of the law.
As briefly alluded to above, one of the most important takeaways, however, is that supporting expert opinion evidence is always required in such cases to be able to successfully argue that medical malpractice (or medical negligence) has taken place on a balance of probabilities. This is because neither the lawyer bringing such a case nor the client, more often than not if not every time, are not medical practitioners or medical professionals themselves and, because of this, cannot testify (in court, at a trial) on what the medical community or medical profession deems to be the standard of medical care in any particular case and at any particular time. While we, as laypeople, may feel aggrieved (or even angry) after adverse outcomes, because such outcomes affect us personally or a close and much-loved family member, any such feelings are personal to us and may not (and often do not) reflect the state, science or practice of medicine, itself complex and every-changing.
If you require assistance with a potential medical malpractice (or medical negligence) case, because you have sustained a serious injury as a result of medical care or treatment that you have received, we invite you to get in touch with us – we will be more than happy to discuss your case with you in the detail required.
