Lawyers sometimes refer to the proof required to bring a successful medical malpractice claim as the “four Ds”: Duty, Deviation (or Dereliction) from Duty, Damages and Direct Cause.
Duty of Care
Doctors, nurses or other medical professionals who have entered a doctor-patient relationship with a patient owe that patient a duty of care, or an obligation to provide reasonable, competent medical care.
Duty is generally one of the easier Ds to prove or disprove because there is usually a clear delineation between who is responsible for treating a patient and who isn’t.
If you’re admitted to a hospital, every medical professional at the facility who has anything to do with your diagnosis or treatment is covered by the hospital’s duty of care, from specialists and diagnosticians to anesthesiologists and attending nurses during surgeries. If the person at the hospital, surgical center or specialist’s office who made a mistake isn’t your primary care physician, they likely still owe you a duty of care.
Deviation (Breach) of Duty
One of the difficult and more resource-intensive parts of a medical negligence case is proving a physician breached their duty of care. The plaintiff needs to prove:
- The doctor failed to act in accordance with best practices for their field
- A doctor of the same field in the same circumstances would have done it differently
- Any reasonable doctor in that situation would not have acted the same way
If a specialist prescribes you twice the recommend dose of a potentially dangerous medication, a personal injury lawyer can get testimony from a physician or teacher in the same medical field who can explain why that prescription was abnormal and dangerous.
Your lawyers will need to prove whatever the medical professional did was abnormal, and a competent physician wouldn’t have made the mistake.
Many aspects of medicine, like an internist diagnosing a patient’s illness, can be somewhat subjective. Three doctors may come up with three different diagnostic results when trying to figure out what’s wrong with a patient who has a rare disorder. The internists that came up with the wrong diagnosis may not have been negligent, even if the patient’s medical outcome wasn’t ideal.
If a doctor messes up setting and casting a patient’s broken bone, resulting in the need for corrective surgery down the road, and it’s proven the doctor was intoxicated at the time of treatment, proving negligence is a lot easier. A doctor meeting the standard of care would have been sober and have set the bone correctly.
Common breaches of duty include things like:
- Making the wrong diagnosis if it can be proven a reasonable doctor would have made the correct diagnosis
- Prescribing or giving the wrong medication or a dangerous dose of the right medication
- Knowingly performing unnecessary procedures
- Making surgical mistakes that could have been avoided had best practices been followed
Damages
It’s not enough for a doctor to have made a mistake. A patient and their lawyer also need to prove the doctor’s error resulted in damages.
If a doctor accidently prescribed you a heart medication instead of antibiotics for your sinus infection, but you suffered no real ill effects from the heart medication, you likely don’t have a case for damages.
Damages don’t have to be physical; they could also be emotional or financial in nature.
It’s generally easier to prove damages if whatever error the doctor made resulted in the need for additional surgeries or other expensive treatments to fix their mistakes.
Direct Cause
You need to be able to prove your damages were a direct result of the actions taken by the doctor.
If you get a hip replacement, don’t follow all the doctor’s post-operative instructions and your hip implant fails as a result, you likely can’t hold the doctor responsible for medical malpractice.
It would be direct cause if your doctor made some kind of surgical mistake that caused your hip implant to fail.
Direct cause can sometimes be difficult due to the complexity of medicine and finger pointing.
For example, in a recent medical malpractice case where surgical staff left a sponge in a patient, the hospital attempted to use the defense that the patient’s complications were due to their diabetes and poor health choices, not the surgical sponge. The hospital also tried to claim the sponge was left by other surgeons during a gallbladder surgery the patient had in 1988.
It was necessary for the patient’s medical malpractice lawyers to disprove these defenses with their own research and expert witnesses. The patient eventually won a jury verdict of $10.5 million.
Do You Have a Medical Malpractice Case in Houston?
Proving medical negligence often isn’t easy or fast. In some cases, patients don’t even realize a mistake was made until months or even years after the injury. Developing evidence, especially breach of duty and direct cause, requires detail-oriented research and requires the assistance of other medical experts in the field.
Our attorneys at the Weycer Law Firm have handled all types of personal injury and medical malpractice cases. We have the resources and experience to build a strong case and will leave no stone unturned in our efforts to win the compensation you deserve.
Contact our medical malpractice law firm at (713) 668-4545 if you suspect you have a medical malpractice case.
