Medical malpractice liability lawsuits fall under tort law, and consist of a plaintiff or a group of plaintiffs accusing the defendant, a medical provider or institution, of negligence. The plaintiff must prove four elements: that a duty of care existed, a breach of that duty, plaintiff injury, and that there is a proximate cause between the injury and the negligence that could have been foreseeable and avoided by any reasonable and prudent health care provider. Judges often weigh the customary practices of other medical professionals in the same industry when deciding a case. Physicians and other health care providers purchase medical malpractice insurance as protection against medical malpractice suits. In exchange for monthly or annual premiums, they are usually represented by attorneys provided by the insurance company.
To begin with, the plaintiff must prove that a duty of care existed. It is often the easiest of the elements to prove, because a duty of care exists between any patient and a health care provider. Even where no written contract exists, there is often an implied contract for such relationships. The duty also requires that the medical professional has the skills and knowledge to treat the patient in a reasonable and competent manner.
The second element that must be proven in a lawsuit for medical malpractice liability is a breach of the duty of care. The standard of care is often defined as what a reasonable and competent medical professional with the same skills, and in the same line of work, would apply under similar circumstances. The level of care and liability is often established by the medical industry, and the plaintiff has to show that it was not met. A medical professional can be found guilty of breaching a duty of care for not giving informed consent, as is common and expected in the medical profession.
A plaintiff usually cannot win a case for medical malpractice liability if he doesn't prove damages suffered. Some of the common injuries that plaintiffs claim in medical malpractice lawsuits include pain and suffering, medical injuries and related medical expenses, and lost wages and income earning ability.
Proving proximate cause is often the trickiest element in a medical malpractice liability case. The plaintiff has the burden to show that the negligence was a substantial factor in the resulting injuries. It is often not enough to prove that there was an injury, but that the injury flowed from the negligent act or omission of the medical provider, and that such negligence was a substantial factor in the plaintiff getting injured. Expert witnesses are often called to the stand by both parties to assert proximate cause, or to try to show that there was none.