Your physician made a disastrous mistake and injured you. Now you’re gearing up to sue for medical malpractice. Did you know you must prove certain elements of malpractice in order to win your case? In this article we’ll tell you what they are, and why they’re essential for malpractice lawsuits.
What Are The Four Elements Of Malpractice?
Earth, air, fire, water. You’ve probably heard of those four elements, believed by the ancient Greeks to make up all matter. But the elements of medical malpractice? They certainly don’t teach those in grade school.
Below we’ve listed the four elements of malpractice. They’re also known as the four “D”s, making them easier to remember.
- Duty of care. Your physician owes you diligent, scrupulous care according to standard practice. After all, they took an oath to “do no harm”.
- Dereliction. This is a breach in the duty of care. In other words, the doctor’s actions veered away from what’s acceptable for a doctor to do in a given situation.
- Direct cause. The unacceptable actions directly caused the patient’s injury.
- Damages. The patient suffered losses because of the injury. These can be emotional, physical, or economic.
These four elements are the building blocks of your medical malpractice case. If they apply to your case, you can move forward with your lawsuit. We’ll explain how to do that below.
Winning Your Case With The Elements Of Medical Malpractice
Suing your doctor won’t undo the hurt they caused you. It won’t bring back a loved one, or restore your health. But filing a lawsuit can serve the following purposes:
- Hold a negligent physician responsible
- Punish criminal behavior (when the doctor’s actions were especially grievous)
- Help prevent similar mistakes from happening to others
- Win funds to pay for essential medical care
- Obtain compensation for your emotional and physical suffering
To win the largest amount of damages possible, you must provide evidence of the four elements of malpractice above.
Next, we’ll explain how each one applies to a malpractice case.
Duty Of Care
First of all, you have to show evidence of a doctor-patient relationship. Bills and correspondence can serve as proof. Then, your lawsuit must establish what the duty of care was for your specific case.
What exactly is this “duty of care”? It’s what any average, trained doctor would do in your physician’s place. For example, they must obtain your informed consent before you submit to any procedure.
Is the duty of care the same for all patients, in every case? Yes and no. All doctors have a duty to follow hygiene guidelines and a code of conduct.
But there are variations depending on specialty or the specifics of an injury. For example, one expectation for surgeons is that they count all instruments before and after an operation. This prevents them from getting left behind in a patient’s body.
In addition, who a doctor is and where he lives plays a part. The duty of care may be different for a rural doctor in a small clinic than for a highly-trained physician in a large city hospital.
Dereliction Direct Cause
Once you’ve established what your doctor’s duty was, you need to show how they failed to do it. This is one of the most difficult elements of medical malpractice to prove.
Sometimes doctors follow all guidelines and do everything right—but the patient still gets injured or passes away. All medical treatment carries some degree of risk. So the injured party has the burden of proving that the physician was truly negligent.
These are examples of items you can use to show evidence of negligence:
- Hospital records
- Other medical records
- Medical notes and correspondence
- Witness testimony
- Testimony of other medical experts
You’ll also use the evidence above to show that your doctor’s action (or inaction) caused your injury. A physician’s insurance companies often try to counter that a patient’s underlying conditions caused their injury (or something else).
This is why it’s so important to establish a direct line of causation between negligence and injury. For example, let’s say a patient has a snowboarding accident. The accident damages his organs. He undergoes surgery at a hospital.
Just a few days later, the hospital gives him an early discharge. He has pain and internal bleeding, but no one’s there to monitor it. He passes away at home.
The lawsuit would have to show that being discharged early caused the patient’s death, and not his initial accident.
The final element of medical malpractice is damages. This refers to money compensation for your losses. You can recover damages for many types of losses, such as:
- Hospital bills
- Medical care
- Lost wages
- Loss of companionship (when your loved one dies)
- Pain and suffering
- Emotional distress
You can prove your economic damages with hospital bills and medical equipment receipts. Your lawyer will help you decide on the appropriate monetary value for non-economic damages.
Ready to Win Your Case?
Providing proof of the four elements of malpractice is a daunting task if you try to tackle it alone. Your best bet is to hire a malpractice lawyer. With Hampton & King, it’s risk free with our no-fees-till-you-win policy. Learn more and schedule an appointment here.