What you need to prove for medical negligence claims

Posted Tuesday, July 23, 2013 by Ed Harper

A former client recently asked me if she had a claim for medical malpractice. This is what i told her: It is possible there is a claim for medical negligence for the failure to provide adequate treatment for you. However, I wanted to go over some details of what is takes to win a case like this, and then we can chat.

Initially, medical negligence cases (or med. mal.) are very difficult against physicians and hospitals. The medical community typically wants to litigate every possible issue, and they have a host of attorneys willing to defend them. One reason is that a physician (who is the captain of the ship) has to personally authorize a settlement. And to do this, he or she is aware their insurance rates are going to go up. Ob/gyn rates are some of the highest for any specialty.

Secondly, the medical records become the “evidence” as to what occurred in the facility. These can be corrupted and items are either inserted or deleted in order to help the physician or facility. But, if you would request your records for the time in question, that would provide the necessary first step in evaluating your claim.

Third, to win a negligence case, you have to prove the standard of care for the particular issue was “breached” by either the physician or the facility. To do this you need an expert to come forward (they are not cheap) and tell us. Then the expert must be willing to testify that the doctor or facility did not meet the requisite standard of care.

Assuming, you have a breach, then you have to establish the “mistake or breach” was the proximate cause of the problems you suffered or continue to suffer from. A problem often arises if a person would have had a medical issue anyway, even without the failure to act appropriately.

Then, assuming you have a breach, and proximate cause, you have to have “damages – the harm caused by the defendants mistake – that make the case worth everyone’s time and effort knowing the defendants will defend at every level. Thus, you can have the first two elements, but not sufficient damages.

I’d love to explain these steps if you have any questions, and I’m sorry you went through what you did.

There is a statute of limitations which limits the amount of time to file a claim. In Washington, this typically is 3 years from the date of injury so a claim would have to be filed by that date to protect the statute.

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