There are always certain elements that need to be demonstrated in order to bring a successful malpractice action. For example, the treating doctor must have had a legal obligation to provide this medical care to this particular patient and there must have been a "breach," that is, an intentional or unintentional infraction or violation of the law. A breach usually occurs when the doctor fails to follow the “standards of the profession.”
Medical malpractice is a tort (civil wrong) that may fall under a “negligence” action. Negligence by a medical professional typically occurs when he or she neglects to protect a patient “from a foreseeable risk of harm.” In order for malpractice to be proved, the doctor’s breach must be the actual and immediate, or precipitating, cause of the patient's injury. In addition, there must be damages for a court to remedy. All of the above elements must be present in order to bring a valid cause of action within the state’s statute of limitations. The patient's attorney has the burden of proving each element of the case.
Typically, the doctor owes the patient a “duty of reasonable professional care” during the course of treatment. To prove this standard, an expert witness will likely be required to testify before the court. Furthermore, to facilitate the discovery process, multiple documents may be requested for review, such as medical and billing records. Witnesses, the patient, and experts in the field may also be interrogated. Depositions may also be used to gather and analyze other pertinent facts.
Monetary compensation for medical costs and pain and suffering are usually provided for in these cases, but punitive damages, designed to discourage similar behavior, are rarely awarded. The patient's attorney may be able to negotiate a settlement with the doctor in an attempt to avoid the risks of a jury trial. Such a settlement is often in the best interest of the patient since litigating a medical malpractice action can be extremely expensive. Any settlement negotiations may involve the doctor’s insurance representatives.
In many cases, medical malpractice attorneys will take cases on a contingency basis, meaning they only get paid if the claim is settled. If a malpractice case is lost, it can still be appealed. Though medical malpractice cases are typically filed in state court, a medical malpractice attorney may advise that a particular suit be filed and litigated elsewhere.