Stated simply, medical malpractice, or medical negligence, is medical care or treatment that falls below the accepted standard of care and causes actual harm to a patient. In a medical malpractice lawsuit, the law places the burden on the patient to prove that a medical provider deviated from the standard of care and caused harm. The first part of the test, establishing the medical provider deviated from the acceptable standard of care, can be fairly straightforward and is often the easier question to analyze and answer.

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 subject 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 factual cause of harm suffered by the patient. This is not as simple as it may sound.

In the case of a surgery, there are a number of complications a patient can develop that are known and accepted risks of the procedure and can still occur even when the surgery is performed within the standard of care. Therefore, it is often difficult to prove within a reasonable degree of medical certainty that a bad surgical outcome was “caused” by negligence of the surgeon.

Similarly, in the case of a delayed cancer diagnosis, the doctor obviously did not “cause” the cancer. Certainly, most cancers require substantial and extended medical treatment and carry a significant mortality rate. In a medical malpractice case where the plaintiff alleges that a doctor’s misdiagnosis or untimely diagnosis caused harm, the burden is on the plaintiff to prove that the patient’s prognosis, treatment or ultimate outcome are worse because of the delay. Again, this is often difficult to establish.

Another example is an orthopedic injury, such as a fracture. Sometimes fractures just do not heal correctly and a patient will be left with significant residual problems or limitations, even if the doctor treats and manages the fracture within the accepted standard of care. In a medical malpractice case where the allegation is that the doctor failed to properly treat the fracture – such as by failing to properly align the bone and set the break, or electing not to do surgery, or not using hardware like a plate, screws or rod to set the bone – the law places the burden on the patient to prove within a reasonable degree of medical certainty that a bad outcome was actually caused by the doctor’s negligent treatment. Because bad outcomes from orthopedic injuries can and do occur even in the absence of any negligence by a doctor, proving that a bad outcome was caused by a doctor can be very difficult.

Medical malpractice is one of the most complex areas of the law. Often, proving “causation” is the most difficult part. Putting together and proving a medical malpractice case in court is a difficult undertaking.