A medical malpractice claim often hinges on showing the physician failed to provide adequate care. Courts often look to a legal theory of negligence when a victim is trying to build this claim.
In order to build the claim, the victim must generally establish four elements:
- Duty
- Beach
- Causation
- Damage
The first is relatively easy to establish in these cases as every doctor owes their patient a duty of care. The second can be tricky: that the doctor breached the duty of care or that the doctor failed to provide adequate care.
Why is this difficult?
Because we are trying to define adequate medical care. How do we determine what is adequate in a given situation? It seems a relative question because it is. To help answer this question, we often rely on expert testimony from other medical professionals.
It is important to note that not just any medical professional will do. Those who are building a medical malpractice claim need to get the right kind of medical professional, one who can speak to the applicable standard of care in the specific situation. Use of a medical professional who specializes in a different field or is otherwise unqualified is unlikely to help the case. If such an attempt is made and challenged, the court could choose to dismiss the claim.
How do I find the right expert?
Courts often look to the knowledge and experience of the expert to make sure the proposed expert qualifies to speak to the matter at hand. Ideally, it is best to have the same type of expert (nurse versus physician) who practices in the same area of care (cardiac versus obstetrics).
The particulars will vary depending on the details of the case. It is also important to point out that this discussion only touched on the first two of the four elements the victim needs to establish to build a successful case. As such, it is wise to seek legal counsel to review the case and provide guidance.
