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How to determine if you have a medical malpractice lawsuit

Posted on January 22nd, 2015

In order to prove a medical malpractice case against a health care professional, you must prove four things: duty, breach of duty, causation, and damages.

1. Duty. The doctor or health care professional had a duty to do something, such as provide treatment up to the standard of care of a reasonable doctor in the jurisdiction. Examples include properly diagnosing a disease such as cancer, or properly identifying mistakes that could happen and then correcting those errors.

2. A breach of that duty. You must prove that the medical professional who had the duty, breached that duty, and did not perform the duty as required.

3. Causation. You must prove that the breach of this duty caused harm or injury to you or a loved one, i.e., the plaintiff.

4. Damages. Even if you prove all three of the above, you must also prove damages. Determining damages is a difficult calculation. As a general rule of thumb, damages must be significant, real, and permanent physical injuries. An emotional slight or an injury that heals in a few months is usually not significant enough to pursue a medical malpractice lawsuit.

Pursuing a medical malpractice lawsuit is an expensive undertaking costing a minimum of $20,000 to prosecute. Your attorney fronts this money and therefore a cost benefit analysis must be conducted. If the damages are worth only $20,000 then they will be outweighed by the cost. Normally, an attorney’s fee is at least a third and often there are medical bills that must be paid back, commonly referred to as a medical lien. Taking all these factors into account, the damages must usually be significant and a minimum of $100,000.

If you feel that you have been a victim of medical malpractice either by a doctor, or in a nursing home, or by some other medical professional, then please call us for a free consultation.