The Medical Malpractice Claim
The plaintiff is or was the patient, or a legally designated
party acting on behalf of the patient, or -- in the case of a
wrongful-death suit -- the executor or administrator of a
deceased patient's estate.
The defendant is the health care provider. Although a 'health
care provider' usually refers to a physician, the term includes
any medical care provider, including dentists, nurses, and
therapists. As illustrated in Columbia Medical Center of Las
Colinas v Bush (122 S.W. 3d 835, Texas, 2003), "following
orders" may not protect nurses and other non-physicians from
liability when committing negligent acts. Relying on vicarious
liability or direct corporate negligence, claims may also be
brought against hospitals, clinics, managed care organizations
or medical corporations for the mistakes of their employees.
Elements of the case
A plaintiff must establish all four elements of the tort of
negligence for a successful medical malpractice claim.
1. A duty was owed - a legal duty exists whenever a hospital or
health care provider undertakes care or treatment of a patient.
2. A duty was breached -- the provider failed to conform to the
relevant standard of care. The standard of care is proved by
expert testimony or by obvious errors (the doctrine of res ipsa
loquitor or 'the thing speaks for itself').
3. The breach caused an injury -- The breach of duty was a
proximate cause of the injury.
4. Damages -- Without damages (losses which may be pecuniary or
emotional), there is no basis for a claim, regardless of whether
the medical provider was negligent.
The Trial
Like all other tort cases, the plaintiff (or the plaintiff's
attorney) files a lawsuit in a court with appropriate
jurisdiction. Between the filing of suit and the trial, the
parties (or their attorneys) are required to 'share information'
through a process known as discovery. Such information includes
interrogatories, requests for documents, and depositions. If
both parties agree, the case may be settled early on negotiated
terms. If the parties cannot agree, the case will proceed to
trial.
The plaintiff has the burden of proof to prove all the elements
by a preponderance (51%) of evidence. At trial, both parties
will usually present experts to testify as to the standard of
care required, and other technical issues during trial. The
fact-finder (judge or jury) must then weigh all the evidence and
determine which is the most credible.
The factfinder will render a verdict for the prevailing party,
and assesses the compensatory and punitive damages, within the
parameters of the judge's instructions. The verdict is then
reduced to the judgment of the court. The losing party may move
for a new trial. In a few jurisdictions, a plaintiff who is
dissatisfied by a small judgment may move for additur. In most
jurisdictions, a defendant who is dissatisfied with a large
judgment may move for remittitur. Either side may take an appeal
from the judgment.