You need proof before pursuing medical malpractice or negligence claims. Just because treatment ended in a bad outcome doesn’t necessarily mean a doctor or hospital committed malpractice.
As mentioned, hospitals can be liable for medical malpractice or negligence if their employees (or those appearing as employees) make a medical or administrative error. A plaintiff must prove:
- There was a legal responsibility to care for the patient
- Treatments, actions or decisions were below the expected standard of care
- The act or omission caused serious injuries
Determining Your Damages
Damages refer to the monetary amount you win in a settlement or lawsuit. They are a culmination of economic and non-economic costs arising from your injury.
Economic damages are easily documented. They include expenses incurred from the medical error, including additional treatment costs and lost wages. If the error caused permanent disability, these damages might include future medical expenses, reduced earning capacity and costs associated with needed services or modifications for your home.
Non-economic damages are subjective. They place a monetary value on your personal experience and struggles. You may see these damages described as pain and suffering.
So, determining damages depends on your actual costs plus the hardship arising from the medical error. Evidence proving these damages may include:
- Medical records and bills
- Expert witness testimony about future medical expenses or earning capacity
- Pay statements showing reduced income
- Journal entries or testimony describing your struggles, pain and suffering
Determining Who to Sue
As discussed above, the doctor-hospital relationship is often complex. But before getting into that evidence, you must determine who was responsible for your injury or illness. Possibilities may include:
- Nurses, medical assistants or aides
- Physician assistants or nurse practitioners
- Physical or occupational therapists
- Pharmacists or pharmacy technicians
- Emergency medical technicians
- Janitorial or cleaning staff (in cases of hospital infections)
Once you figure out who is responsible, you need records of where these individuals fell short. Usually, that’s accomplished with the following:
- Medical records
- Testimony from coworkers or other witnesses
- Hospital administration records showing shortcomings in sanitation or maintenance
- Incriminating background checks
- Records of misbehavior, abuse or substance use
If you find a doctor responsible and want to also hold the hospital responsible, you need to show there was an employer-employee relationship–or there appeared to be one. You can do this by finding the following:
- Pay statements showing the hospital pays the doctor
- Schedules and employee records
- Employment contracts
- Admittance forms that don’t mention independent contractors
- Medical records showing you were impaired or unconscious when you were admitted
When it isn’t clear who is at fault, the lawsuit can name several individuals and the hospital. Removing parties from the lawsuit is easier than adding one later.
Using Medical Expert Testimony
Medical expert testimony proves crucial whether you file a medical malpractice or negligence claim against a hospital.
For medical malpractice claims, it isn’t enough to be unhappy with the treatment you received at a hospital. Instead, you must show that:
- The treatment was below reasonable medical standards
- Another doctor with similar experience facing the same situation would have administered different treatments and prevented harm
- The injuries were more likely than not to have been caused by the doctor’s failure to meet reasonable medical standards
The problem with medical standards is they vary between specialties. What is considered reasonable skills and knowledge in one area may not pass muster in another. For example, lab tests for diagnosing cancer are not generally standard in emergency medicine. Medical experts can explain the standards of care in their specialty and why the medical treatment you received did not meet them.
Negligence claims may also require expert testimony. For example, if you contracted sepsis during a hospital visit, an expert can explain how the hospital didn’t sanitize the surgery theater or your room correctly. Experts can also explain why staff behavior was discriminatory or how the hospital’s record management system failed to meet standards.
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