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What Five Elements Need to be Present in a Medical Malpractice Case?

Written by Berkowitz

berkowitz law medical malpracticeMany forms of negligence exist under the umbrella of medical malpractice. Medication errors, misdiagnosis, and surgical errors are all examples of malpractice that stems from a medical practitioner’s action. Failure to act is another type of malpractice, illustrated in cases involving a lack of diagnosis and a failure to recognize symptoms or order specific lab work. To prove any of these errors as medical malpractice in court, five basic elements must be present. Understanding each of these elements can help you decide whether or not to pursue a medical malpractice lawsuit.

Duty of Care

When a medical professional treats a patient, he or she has a legal responsibility to provide competent medical care to the best of his or her ability. A doctor-patient relationship is legally established once a patient presents, resulting in certain professional expectations. This legal responsibility is called duty of care, and it is the primary step in establishing malpractice. Nurses, pharmacists, and other health practitioners have specific duties of care to their patients or clients as well.

Breach of Duty

In order to validate a malpractice claim, a breach of duty must also be shown. This means that a health care provider neglected to perform their duty of care effectively. A breach of duty can be an action taken, such as a misdiagnosis, or a failure to act, such as neglecting to order standard lab work. Courts examine aspects of the circumstances to establish that a standard of medical care was in fact breached. The following questions are considered:

  • Would another person in the medical professional’s position use similar levels of reasonable care to prevent injury?
  • How likely is it that the medical professional was able to foresee the risk of injury under the circumstances?
  • Were there any available alternatives that may have prevented injury?
  • If so, was the risk of using potentially safer alternatives greater than the risk of doing nothing?


In a malpractice suit, the breach of duty must be connected to the injury sustained. An injury can be either physical or psychological, but a direct link between the medical practitioner’s breach of duty and an injury must exist. While physical injuries may be obvious to the patient, psychological injuries can be harder to prove. An example of a psychological outcome of medical malpractice is post-traumatic stress disorder from an anesthesia error that caused him to be awake during surgery.

Deviation from Standard of Care

In the process of connecting the injury with the physician’s action, the standard of care is evaluated. If a medical practitioner’s actions contradicted the generally accepted standard for his or her position, the claim of negligence will be strengthened. Proof must be presented to establish a deviation from the standard accepted decision. This is usually demonstrated by comparing the decisions of other professionals in the same field of practice.

Establishing Damages

Financial, physical or emotional damages must be established to prove negligence. Past and future medical expenses and lost wages are common examples of economic damages, while pain and suffering, loss of consortium, disfigurement, and loss of enjoyment of life are types of non-economic damages. Once the practitioner is deemed negligent, the compensation he or she is required to pay is based on these damages.

Berkowitz and Hanna LLC – Connecticut’s Medical Malpractice Attorneys

If you or someone you love has experienced an injury or life-altering medical condition due to the negligence of a medical professional, it is in your best interest to consult an experienced attorney immediately. The team at Berkowitz and Hanna LLC is highly skilled in handling medical malpractice lawsuits, and we believe every client has a legal right to compensation for medical expenses, pain and suffering and other related costs. Choosing to pursue a malpractice claim while dealing with the physical and emotional repercussions of medical negligence can be overwhelming. Our compassionate, knowledgeable attorneys will help you through the process so you can focus on recovery. Contact Berkowitz and Hanna LLC today for a free consultation.