Medical Malpractice

What you need to prove:

The plaintiff in this case, claims that (he/she) has been injured through the negligence of the defendant. Negligence is the violation of a legal duty which one person owes to another.

The legal duty that a health care provider owes to a patient has been established by our legislature. We have a statute which provides that "[i]n any civil action to recover damages resulting from personal injury . . . in which it is alleged that such injury resulted from the negligence of a health care provider . . . the claimant shall have the burden of proving by a preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."

Because the health care provider in this case, has been certified by the appropriate American board as a specialist, a "similar health care provider" in this case is, according to our statute, "one who: 1) is trained and experienced in the same specialty; and 2) is certified by the appropriate American board in the same specialty."

The prevailing professional standard of care that applies to the defendant is thus the level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent board certified specialists. This standard applies to both diagnosis and treatment. In order to establish liability, the plaintiff must prove by a fair preponderance of the evidence that the doctor's conduct represented a breach of the prevailing professional standard of care that I have just described.

The standard of care is the standard prevailing at the time of the treatment in question.

A doctor such as the defendant is held to the same prevailing professional standard of care applicable across the nation. For this reason, the particular state in which an expert witness has practiced is unimportant. You should consider the testimony of all the experts who have testified in light of their familiarity or lack of familiarity with the standard of care to which I have referred.

A doctor does not guarantee a good medical result. A poor medical result is not, in itself, evidence of any wrongdoing by the health care provider. The question on which you must focus is whether the defendant has breached the prevailing professional standard of care.

As I have already mentioned, the plaintiff has the burden of proving by a fair preponderance of the evidence that the doctor's conduct represented a breach of the prevailing professional standard of care. Under our law, the plaintiff must prove this by expert testimony. More specifically, (he/she) must establish through expert testimony both what the standard of care is and (his/her) allegation that the doctor's conduct represented a breach of that standard. Finally, (he/she) must establish, through expert testimony, that the breach of that standard of care was a proximate cause of the injuries that (he/she) claims.

LOST CHANCE SURVIVAL:

In this case, plaintiff claims [in part] that they suffered a lost chance of survival which was proximately caused by the negligence of the doctor or hospital, because if they were not negligent, plaintiff would have had a greater than 50 percent chance of surviving. This is called a "loss of chance" claim. To prove (his/her) claim, plaintiff must prove, by a preponderance of the evidence:

1. that plaintiff was in fact deprived of a chance of survival, and
2. that (his/her) decreased chance of survival more likely than not resulted from the negligence of the doctor.

In order to establish this claim, plaintiff must prove that absent defendant's professional negligence, patient had a greater than 50 percent chance of survival. It is not sufficient for plaintiff to prove that the negligent conduct deprived him/her of some chance of survival. Plaintiff must prove that the negligent conduct more likely than not affected the actual outcome. In other words, if patient probably would not have survived, even if (he/she) was treated properly, (his/her) death was caused by (his/her) medical condition, and not defendant's negligence.

However, if you find that if patient had been properly treated, more likely than not (he/she) would have survived, then (his/her) death would be the result of defendant's negligence and not (his/her) underlying condition.