Facts about Medical Malpractice

Knowing the Facts about Medical Malpractice Lawsuits

There are four major elements that are required to be successful when filing a surgical malpractice or medical malpractice lawsuit.

  • Establishing that a legal duty is owed
  • Establishing that the legal duty was breached
  • Learning that the breach has caused an injury
  • Sustaining damages occurring from the injury

The legal duty of a hospital or health care provider occurs when the health care provider begins any type of service on the patient, answers any questions for a patient, or enters a contractual agreement with the patient. This can occur during a standard checkup procedure, during a telephone conversation or even during surgery.

There is a legal breach when the health care provider fails to meet a relevant standard of care for the time and place of the alleged injury. This ‘standard of care’ will have to be established by expert testimony or in other cases, hard evidence taken from devices such as surgical instruments after an operation.

When this breach of legal duty causes an injury, the patient must show that the health care provider has failed to conform to the relevant standard of care and that was the reason for the physical damages. Another way to show this could be to establish facts illustrating how the physician’s negligence directly (or indirectly) led to the sustained injuries. For example, a surgeon who leaves a sponge or surgical instrument inside someone, operates on the wrong side, or removes the wrong breast during a mastectomy could be classified as negligence.

The final step of course is to prove that damages occurred as a result of the injury sustained. In some cases it is difficult to demonstrate damages such as the amount of ‘pain and suffering’ or ‘emotional distress’ one has suffered, while other times it is very clear cut (such as a wrong-side amputation). Damages are usually defined as an estimated monetary equivalent which is used to compensate the patient. Direct damages can include lost earnings, as well as medical expenses, while indirect damages may include compensation for ‘emotional distress’ and ‘pain and suffering’. In some cases punitive damages are awarded when the physician’s conduct is intentionally harmful or negligent.

If you or a loved one has been a victim of a surgical accident due to medical malpractice it is extremely important that you contact an experienced surgical accident lawyer immediately. Our qualified surgical accident lawyers can help you receive financial compensation for your suffering. Please use our free case review form and contact us today.


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Medical Malpractice Facts and Lawsuit information provided free of charge from Resource 4 Surgical Accidents. Updated 9/07/06.