DETERMINING MEDICAL NEGLIGENCE

Negligence is a legal concept that applies to anyone accused of malfeasance. In all negligence cases, the evidentiary obligation rests with the plaintiff. That is, the plaintiff must provide some evidence in support of all key elements required to establish a prima facie case based on negligence.

For medical negligence, the plaintiff must show that

1. the defendant owed a duty of care to the plaintiff;
2. the defendant breached that duty by not exercising the appropriate standard of care in the delivery of medical care;
3. the breach in the standard of care was the proximate cause of injury; and
4. the injuries were significant enough to be compensable.

In future editions of Expert Advice, we will look at each of the requirements in more detail, but for now, we would note that many legal actions fail because of #3 – that is, proving that the deviation from standard led directly to patient injury.  There are pitfalls in proving proximate cause and the “bad outcome”, in the absence of an overt act of commission or omission, will not carry the day.