Medical malpractice is a term generally used to describe actions against a variety of health care professionals. The liability that attaches is in essence negligence liability; in order for plaintiff to prevail, he or she must prove each of the traditional elements of negligence. Accordingly, the plaintiff in a legal malpractice action must establish that defendant’s conduct constituted a breach of a legal duty that was the cause in fact and the proximate cause of actual damages to the plaintiff. Each of these elements are as follows:
- Duty – As in traditional negligence analysis, the imposition of a legal duty in medical malpractice actions stems from the formation of the physician/patient relationship. Under the substantive law, the formation of that relationship and the affirmative undertakings that arise therefrom impose a duty upon the physician to meet the applicable standard of care. Conversely, the absence of this relationship often means no duty of care is owed. Out attorneys seek to discover and establish the facts necessary to prove the formation of a physician/patient relationship and the undertaking of affirmative duties by the physician.
- Breach of Duty – A physician must exercise that degree of skill usual in the profession and exercised in the place in which the physician practices. The general test is somewhat varied in the case of medical specialists, to take into account that higher degree of learning and skill typically possessed by specialists. At the same time, it is clear that a bad result alone only rarely results in liability, since poor results in medical science can and do result where there is no failure to exercise due care.
Much of our discovery deals with the nature of the physician’s undertaking at various stages in the physician/patient relationship. We investigate the diagnosis, treatment, and follow-up care, most of which are designed to elicit facts relating to whether the physician acted with due care. In addition, we typically require identification of documents and witnesses relating to the fundamental issues of whether the physician’s conduct comported with the applicable standard of care.
- Cause in Fact – The defendant’s negligence must be a substantial factor and material element in bringing about the plaintiff’s harm. This element is crucial in medical malpractice cases; the plaintiff cannot prevail if his or her medical condition and symptoms would have occurred even without the defendant’s negligence. Accordingly, we investigate any person, event or condition that plaintiff alleges to have contributed to plaintiff’s symptoms or medical condition. In addition, discovery deals with the contention that plaintiff’s medical situation was inevitable, the result of disease progression, or due to any other cause beyond the control of the physician.
- Proximate Cause – The defendant’s liability can be reduced or cut off entirely if additional forces combined with defendant’s negligence to cause plaintiff’s injury or medical condition. This frequently occurs in disease progression cases where plaintiff’s preexisting condition can precipitate additional medical complications independent from or in concurrence with defendant’s negligence. In addition, proximate cause issues can arise when defendant’s negligence results in a harm that is unforeseeable in nature or scope.
- Damages – As with other negligence cases, traditional damage analysis divides recoverable compensatory damages into: 1) special damages, which may be calculated with some precision and which ordinarily represent past or future out-of-pocket losses; and 2) general damages, which are ordinarily awarded for intangible losses such as pain, suffering, and humiliation. The nature and extent of general damages is hotly contested in medical malpractice cases which may include claims for loss of life expectancy and loss of enjoyment of life. We will identify defendant’s contentions regarding general and special damages and ascertain the known facts regarding the measure of these losses.