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A comprehensive discussion of medical malpractice litigation is beyond the scope of this book. Each case is unique and presents a multitude of issues. But, in the end, a medical malpractice case boils down to three elements that must be proven by the plaintiff. Proving less than three is insufficient and will result in a verdict in favor of the doctor, healthcare provider, or hospital. It is always the plaintiff’s burden to prove all three propositions.


The first issue is negligence. Negligence in a medical malpractice case means that the defendant deviated from the standard of care that was required under the circumstances. The term standard of care is a term of art. It has no precise definition.

Standard of care generally refers to the type of medical care that a reasonable and prudent doctor would provide under the same or similar circumstances. Because medicine is an art and not an exact science, the standard of care is a guideline based on the facts surrounding your case and the prevailing medical practices in your local medical community.

The law applicable to medical malpractice case does not require doctors to be perfect or to practice with mathematical precision. As long as the art of medicine is practiced up to the standard of care, the doctor is verdict-proof, even if the medical outcome is poor.

In order to prove the standard of care, a medical malpractice case requires the plaintiff’s attorney to engage the services of a physician, knowledgeable and experienced in the area of medicine at issue. In order for the case to have any chance of success, this physician must render the opinion that the care was substandard.

Thus, it is important to recognize that even if you and your lawyer think the doctor malpracticed, this does not mean your case is winnable. An opinion from a physician is almost always required. And even if an expert testifies that the care was negligent, this only means that you can present proof of negligence at trial. You still must convince the judge or jury that this is so.

There are rare cases in which an expert witness is not necessary to prove negligence. If the carelessness of the physician is obvious, expert testimony from a physician is not necessary. (The best example of this type of situation is where a sponge or some other medical device is left in the patient’s body following surgery.)

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