The Burden of Proof Factor in a Medical Malpractice Claim
Written by Berkowitz
August 29, 2016
Before you file a medical malpractice lawsuit, you need to understand the burden of proof – and whether you have a legitimate claim or not. Even if a doctor commits an error, that error may not be the result of negligence; therefore, he or she may not be liable for your injuries under malpractice laws. That being said, you should always consult with a medical malpractice attorney to see if your case is of negligence or not. Doing so can ensure that you receive compensation for injuries that you have suffered.
Can You Carry Your Burden of Proof?
As the plaintiff, you have the burden of proof. That means you must show that the physician is liable for your injuries and that he or she acted in a way that resulted in your injury. This is a big task to take on – and one you should not do without the assistance of a medical malpractice attorney. To carry the burden of proof, you must establish that:
There was a duty. This means that the physician or healthcare provider owed a duty of care to you. This is often self-evident and not disputed. If there was no doctor-patient relationship, then the physician could dispute whether there was a duty of care. For example, a physician you received information from online but didn’t enter into a professional relationship with.
Negligence occurred. The physician or healthcare professional failed to reach the standard of care that is expected of them. The medical community standards are not the same as the practice guidelines; therefore, you would need to compare the medical provider’s actions against those of other providers in a similar situation to determine if they deviated from the “standard.”
You suffered an injury. If there is no injury, even with a deviation of the standard, there is no case. You must show that you suffered a loss or injury as the direct result of the negligence. You will need to prove with a probability of more than 50 percent that the outcome would have been better with the absence of the substandard care you received.
The negligence was the cause of your injury. Your loss or injury must be a direct result of the breach of duty. An unexpected or undesirable outcome of a medical procedure is not automatically a case of malpractice. Instead, you need to show that negligence or a breach of the standard of care led to an injury. If the physician performed within his or her duty, but your outcome was unfavorable, it is not malpractice.
Assessing Approved Practice – Even though the treatment may not have been standard, if the caregiver can argue that it was a reasonably approved practice and other competent professionals use that practice in the same capacity, your case could have no ground to stand upon.
Honest Error of Judgment – If a physician had an honest error of judgment, you may not be able to take action upon that – but this will require an attorney to assess the case and determine if malpractice occurred within that error.
Contributory Negligence – If your injury or loss was the result of your failure to seek or follow recommended treatments, the medical professional may be able to argue that their substandard care is not the cause of your injury; instead, your failure to follow instructions was the cause.
Injured? Speak with a Malpractice Attorney
To ensure that your case meets the burden of proof, have it assessed by a Connecticut medical malpractice attorney. An attorney will look at your case from both perspectives (plaintiff and defense) to see how the burden plays out and if there is enough evidence to establish the physician’s fault. Contact Berkowitz and Hanna LLC today to schedule a no-obligation case evaluation.