Is Medical Malpractice Difficult to Prove?
The process of analyzing whether a deviation from the standard of care occurred involves determining, through the right medical expert(s), what the applicable medical standard of care was under the given circumstances and then assessing whether the medical provider’s care fell below that standard. Frequently, it is the next part of the medical malpractice test that proves more difficult to establish.
Once it has been determined that care fell below the applicable standard, the patient is then required to prove within a reasonable degree of medical certainty that the below-standard care was the factual cause of harm suffered by the patient. This is not as simple as it may sound.
The analysis of any case must begin with a very simple question: Was the healthcare provider negligent? The mere fact of a bad, unexpected outcome does not mean that there was negligence. The fact that another healthcare provider would have acted differently does not mean that there was negligence. Even an actual mistake by the healthcare provider does not mean that there was negligence. (After all, healthcare providers are humans. They are allowed to make mistakes.)
The healthcare provider is negligent if and only if he has acted unreasonably, that is, done something no reasonable healthcare provider would have done under the circumstances. Whether an act (or failure to act) by a healthcare professional is reasonable can only be analyzed under the specific circumstances of the case. Of course, I am not allowed to testify whether the healthcare provider acted reasonably, and neither is the patient. Only another qualified, expert healthcare provider can testify to such matters. Oftentimes, we spend the money necessary to hire such a highly qualified expert only to find out that what the treating healthcare provider did was not unreasonable. Just finding that there is no viable case can cost a lot of money.
Assuming we can prove that the healthcare provider acted negligently/unreasonably, we must also prove that the patient was injured by that negligence. After all, the patient usually has some problem before the healthcare provider even gets involved. If the healthcare provider was negligent but did not make the underlying situation worse, there can be no medical malpractice case. But if the negligence actually made the patient worse, there is probably a viable medical malpractice claim.
Again, though this causal link between negligence and injury is not something that I or the patient may testify to. Only a qualified medical expert may testify to this cause and effect. Again, such an expert will charge for his or her time involved in the case to review the medical records and determine if the negligent act, in fact, caused a real injury.