Medical Negligence and the “Burden of Proof”

Understanding the Malpractice Trial Process

By Dr. Jay S. Grife; Esq, MAinsurance-book

In all civil trials, the plaintiff, as the accuser, has the burden of proving his case.  Much like a criminal defendant, a civil defendant has no burden and is presumed “innocent” of any claim by the plaintiff.  As a result, if the plaintiff presents no evidence, or insufficient evidence to support his claim, the defendant wins without having to present his case.  The burden the plaintiff carries is that he must prove his case by what is called a preponderance of the evidence.  In other words, the plaintiff must prove it is more likely than not that he should win.  The best way to visualize this burden is to imagine a set of scales.  If the scales are even, or tipped in favor of the defendant, then the plaintiff has not carried his burden, and loses.  In order to prevail, the plaintiff must tip the scales in his favor.

Proving Medical Malpractice

To prove a case of medical malpractice, a plaintiff-patient must present evidence that the defendant-doctor was negligent, and the plaintiff does this by proving the treatment provided was below the applicable standard of care.  The “standard of care” is the care and skill that a reasonably prudent practitioner would provide in treating a patient.  It is established by the medical community at large, and is constantly evolving.  Care that violates the standard of care today may not necessarily violate the standard of care several years ago.  This distinction is an important one, since most cases take several years to get to trial.  The standard of care is never based on the outcome of the case; a bad result does not necessarily mean a violation of the standard of care.

The Medical Expert Witnesses

Expert medical testimony is required to establish a violation of the standard of care in virtually all medical malpractice cases.  A plaintiff who fails to present the required expert medical testimony in a medical malpractice case will lose.  The plaintiff must also produce expert medical testimony that the alleged negligence caused the injury.

For example, suppose that a patient’s widow brings a medical malpractice case against a surgeon who admitted the patient for removal of an AO plate embedded in bone.  The plaintiff-widow alleges that the surgeon should have done something to prevent a pulmonary embolism, which occurred three days after the patient was dismissed from the hospital, killing him.  The patient might have an expert who would testify that she would not have removed the AO plate, but left it in place.  Such testimony does not carry the burden of proving care below the standard required of the surgeon.  Indeed, in most cases, the standard of care allows a practitioner to choose from a variety of treatment options within an acceptable range.  Mere testimony by an expert witness that “I would have treated this patient differently” is insufficient to establish a breach of the standard of care.  The bad result also is not itself proof of any negligence.  Nor is there any evidence that the doctor caused the patient’s death (i.e., that the embolism would not have occurred without the alleged negligence of the surgeon). Therefore, doctor wins on all elements.


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