Medical Malpractice Suits
Eventually all of us must seek the assistance of a medical doctor in our lives. When this occurs we hope that the doctor knows what he is doing and performs his services competently and successfully. However, when this does not occur the law provides a remedy. This remedy is called the malpractice suit. There are five elements to such a suit: duty, breach, causation, damages and defenses.
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Duty
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Two elements comprise a doctor's duty. First, the person or persons to whom a duty is owed must be ascertained and second once that person or persons is identified the doctor must not fall below the "standard of care" in his treatment of that person or persons. It is not difficult to determine to whom a doctor owes a duty: it is his patient. The standard of care is determined by a national standard. The doctor must have the same skills as a doctor in good standing in the country where he is practicing.
Breach
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It is easy to prove when a doctor has breached his duty to the patient. All that is necessary is evidence showing that the doctor's conduct fell below the doctor's "standard of care" in his treatment of the patient.
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Causation
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To show that the doctor's conduct was the legal cause of his injuries, the patient must show two things: that the doctor's conduct actually caused his injury and that his injury was a foreseeable consequence of the doctor's conduct. The doctor has actually caused the patient's injury when "but for" the doctor's conduct the patient would not have been injured. After enough evidence is presented showing that the doctor caused the patient's injury, the patient or his attorney must show that at the time the doctor treated the patient it was foreseeable that this treatment would hurt the patient.
Damages
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The patient must then show that he suffered "actual" injury. It is not enough for him to show that the doctor did something he was not supposed to do or failed to do something he was supposed to do. The patient must show that he was hurt.
Defenses
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The doctor can claim that the patient was also at fault in his injury. If this is proven then it will usually result in reduction of the patient's award in proportion to his own fault. Thus if the patient was 40 percent at fault in his injury and the doctor was 60 percent at fault, then he will be able to obtain only $60,000 out of a $100,000 lawsuit against the doctor. Otherwise, the doctor may argue that the patient assumed the risk of the doctor's treatment. If the patient knew of the risk and voluntarily assumed it then he cannot win the malpractice suit.
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