Elements of a malpractice case

I get many calls from potential clients who are upset about what has happened to them in their doctor's office or at a hospital. Almost invariably, the conversation starts out with the statement, "I don't know if I have a case or not, but . . ." and then they proceed to tell me what happened.

I spend much of my time explaining to people what is required to have a viable medical malpractice case. It often turns out that the person does not have a case, but they usually feel better about having talked it through with an attorney.

In short, there are two basic elements to a malpractice case. First, the health care provider must have done something negligent. That is, they did something that no reasonable doctor or nurse would have done under the same circumstances. For example: they left a sponge in you during surgery, or they failed to see a nodule in your lung on an x-ray.

Secondly, the conduct of the health care provider must have caused some sort of harm. We must be able to connect the patient's injuries with what ever the doctor or nurse did wrong. For example, if a pharmacy sent you home with the wrong medication, that would be negligent. However, if you were lucky enough to realize the mistake before you took the medication, then no harm was caused by the pharmacy's conduct.

So, any evaluation of a potential malpractice claims starts with trying to satisfy these two elements. What did they do wrong and what harm did they case?

Another very important aspect to medical malpractice cases is the extent of the damages. This topic is covered in another post.