How to Prove a Medical Malpractice Lawsuit

Date:July 21, 2016

According to a study in the Journal of Patient Safety, every year between 210,000 and 440,000 Americans who visit the hospital for care may suffer some type of preventable harm that contributes to their death. To put that in perspective, only heart disease and cancer kill more Americans than medical errors in hospitals and other health care facilities. In fact, according to Martin Makary, a professor of surgery at the Johns Hopkins University School of Medicine, “It boils down to people dying from the care that they receive rather than the disease for which they are seeking care.”

medical malpractice lawsuitOne of the first questions you may have about your potential medical malpractice lawsuit is, “What do I need to prove?”

If you are injured in a hospital, you will have to prove that a health care professional was negligent in their treatment of you and that you were injured as a result of that health care professional’s negligence. This is an overview of what you will need to prove in a medical malpractice lawsuit against a hospital, and the types of damages that you can reasonable expect to recover.

In order to be successful in a medical malpractice lawsuit against a hospital, you will have to prove the following:

  • The hospital owed you a duty of care. Hospitals are required to treat all patients regardless of their ability to pay.  If you were medically treated at a hospital, then all of the hospital’s treating health care professionals owe you a duty of competent medical care up to the standards established by the medical care profession.  The hospital usually will be liable for the acts of its staff and treating health care professionals.  Conversely, if you choked on a piece of food and were injured at a dinner party where a physician who works at a hospital was a guest, that doctor and the hospital would not owe you a duty of care since the doctor was a guest and you were not at the dinner party to receive medical treatment.
  • The hospital breached that duty of care to you. The duty of care refers to the medical standard of competence established by the medical care profession.  The question is what a reasonable treating health care professional would have done in a similarly situation and whether the treatment you received met the established medical standard of care.  An example would be if a nurse or physician made a prescription error or failed to diagnose your condition which led to an injury.  Those mistakes could constitute medical negligence.  As another example, if you go to a hospital for treatment and got an infection because the hospital’s facilities were unclean, you could have a case for a medical malpractice lawsuit.
  • The hospital’s breach of their duty of care to you caused your injuries. This refers to whether the hospital’s treating health care professional’s conduct caused your injuries.  Common situations of breaches of the medical standard of care include failure to diagnose, improperly performed procedures, an unclean environment, and prescription errors.  For example, if you go to a hospital for an emergency surgery and a doctor improperly amputates an extremity or leaves a scalpel inside of you, then you probably have a case for a medical malpractice lawsuit.  However, if you had a pre-existing condition, such as a heart condition that was not related to your treatment at the hospital, the hospital would probably not be liable for injuries related to your heart condition.  An exception would be if your treating health care professional’s actions worsened your pre-existing condition unnecessarily.
  • That your injuries are compensable. If you were injured because of a hospital health care professional’s negligence, you will have to sustain actual injuries for which you can be compensated.  As an example, if your doctor improperly performed a surgery, but you recovered well and suffered no real loss, you would probably not have any compensable injuries.  Conversely, if a hospital doctor improperly conducted a surgery and caused you to lose the full use of your arm that would not have otherwise have happened but for the doctor’s substandard medical care, then you would probably have a case for a medical malpractice lawsuit.

These are the types of damages that you can reasonably expect to recover in a medical malpractice lawsuit against a hospital:

  • Medical expenses. This includes the cost of your medical treatment and the cost of any future medical treatment attributable to the hospital’s negligence.
  • Lost and future earnings. This refers to any lost wages, time off work, vacation and sick days, and any future loss of earning capacity caused by the hospital’s negligence.
  • Pain and suffering. This refers to your monetary recovery for grief, anxiety and other emotional damages.
  • Loss of use. This refers to damages for loss of use of an extremity or other part of your body or any physical limitations caused by the hospital’s negligence.
  • Emotional distress. This refers to any emotional damages incurred as a result of negligence that can be attributed to the hospital’s negligence.
  • Wrongful death. This refers to damages or a cause of action that can be sustained by a family member or a spouse if a hospital’s negligence results in the death of a spouse or a family member.
  • Enhanced compensatory damages. Unlike many states, in most situations New Hampshire law does not allow for punitive damages – which are designed to not only compensate the victim but to punish the defendant. However, New Hampshire does provide for “enhanced compensatory damages” when the negligence was particularly severe.

If you have been injured as a result of medical malpractice, here are some tips on what to do to ensure that you receive proper medical care and the compensation you deserve:

  • Seek medical attention right away and get treatment. It is important that you take care of yourself and get proper medical care.
  • Make a list of witnesses who can attest to your substandard medical treatment.
  • Document your injuries and expenses. For example, keep track of your medical bills, lost compensation, and any other expenses related to your treating health care professional’s negligence.
  • If you are medically cleared by a competent treating physician and still feel pain or discomfort, get a second opinion.
  • Keep a journal of how you feel each day, including your emotions, and any pain, discomfort or limitations that you experience as a result of your injuries.

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