Medical malpractice suits occur when someone believes he has suffered a physical or psychological injury because of the misconduct, error or incompetence of a health-care professional such as a physician, nurse or psychiatrist. Examples include surgical errors, injuries sustained to a child during birth and misdiagnosis. Four elements are needed for a successful malpractice suit.
The first element is that the health-care professional had a duty to you as a patient. This means that you must have had a client relationship with the health-care professional -- usually a physician -- before the incident or event that caused you to file the malpractice suit. The physician-client relationship begins as soon as you visit a physician and he starts treating you. At that moment, the physician has a duty to provide you with a standard of care established by the medical profession.
The second element you must prove is dereliction, which means the physician breached his duty to you by not adhering to the standards of his profession. Proving this element can be tricky because differing standards exist for health-care professionals. For example, a nurse would not be privy to areas of knowledge that a surgeon would have. However, your burden is to prove that the breach occurred within the expected knowledge of the particular health-care professional, whether it be a physician, anesthesiologist or nurse.
The third element you must prove is that the physician's dereliction of duty was a direct cause of the injury you suffered. This can also be difficult to prove because a number of things can go wrong during a surgical procedure or while you are undergoing treatment that is not the fault of a health-care professional. For example, a physician may prescribe medication that causes an allergic reaction that you never experienced before. Your malpractice suit would have to prove that the physician knew you would suffer this adverse reaction even though you did not have a prior allergy.
The last element you have to prove in a medical malpractice suit is damage, which is distinct from injury. Damage is a quantifiable loss you suffered as a direct result of the physician's misconduct. For example, if you feel a surgery was botched, and as a result you can no longer physically perform your regular job, your lost wages and benefits would be classified as damages. Other damages include additional medical expenses and physical suffering. Harder to prove are psychological damages, such as those that result from the alleged misconduct of a psychiatrist.