SAC: Well, to prevail in a medical malpractice case, against a physician, the plaintiff or patient must prove four distinct elements. Duty, a breech of a duty, proximate cause and damages. And if any of those essential elements is missing, the plaintiff will not prevail. And it’s the plaintiff who has the burden of proof in these cases. I can address each one of the elements separately.
Duty actually refers to the legal relationship between the plaintiff and defendant. In a medical malpractice case, the duty requires that the healthcare provider delivers healthcare in accordance with the standard of care. So a relationship must exist before the duty arises, thus in a medical negligence situation, a doctor/patient relationship must be established before this duty arises. Once there is that physician/patient relationship, the defendant doctor becomes legally accountable for his or her actions. Now, you may ask what is the level of conduct to which a healthcare provider is held or what is the standard of care? The standard of care is very…you can’t to go a book and find the standard of care. A doctor is required to possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified physician in the same or similar circumstances. It’s a standard or reasonableness. And a plaintiff or patient must introduce evidence at trial to demonstrate the standard of care. And how do you introduce this evidence? This is where that expert witness comes in. You need to hire an expert witness to review the case and then that witness must come in at trial and testify as to the standard of care and that it has been breeched. The expert must have qualifications and expertise very similar to that defendant doctor. The expert testifies about the standard of care a trial and they also testify that the defendant’s conduct fell below that standard of care. Now, you can establish standard of care not only with an expert witness but you can look to other sources as to what is reasonable conduct by a physician. Sometimes documents are used to help define the standard of care. For example there might be practice bulletins or guidelines that are published by professional medical organizations that may help define the standard of care. In a case against a hospital you can look the hospital’s policies and procedures. Obviously, they should reflect the standard of care. You can look to medical text books or articles as to what is reasonable conduct for a doctor in a given situation. And sometimes, John, there are statutes that actually define the standard of care. For example in Illinois, physicians versus midwives, have a duty after a baby is born to instill eye drops in the eye to prevent a certain eye disease. So that is a practice or standard that is dictated by law. So you can try and define standard of care in all of these different ways but the most common way is with an expert witness.
The second element is breech of duty. Once the expert establishes the standard of care, the plaintiff must also show that there has been a breech in that duty. And a breech of that duty can either be an act or an omission. And it must be a foreseeable breech. Expert testimony, policies and procedures and all of the other things that we discussed can show a breech in the standard of care.
Another important element is proximate cause or causation. There must be a direct relationship between an alleged negligence and the plaintiff’s injuries. To you the words of the law, as a direct and proximate result of the acts or omissions of the defendant, the plaintiff must have sustained an injury. No defendant will be found liable for injuries to the plaintiff simply because the defendant performed negligently. There has to be that causal connection.
Causation is also proved by expert testimony and this may be a difficult element for a plaintiff to prove in a medical negligence case because there may be other explanations for the patient’s injury. Many times in these cases, proximate cause if the big defense. A defense attorney will argue that nothing the doctor did or did not do caused the patient’s injury. You know, it just happened, it would have happened anyway. So proximate cause is a big defense.
At Clifford Law Offices, I work on a number of cases that involve babies. Cases where babies have been injured as a result in the delay of performing a C-Section or an improper delivery. And in these cases, proximate cause is always the big defense. For example, the defense attorney will say that the brain damage may be due to a problem with the placenta or the brain damage in the baby may be do to some genetic problem or an infection during the pregnancy with the mom or the baby in utero. So proximate cause is a very important element and it is a way that a medical malpractice case is defended.
And the final element is damages. The plaintiff must prove that they have sustained an injury or damage. And in Illinois damages fall into to basic categories. The first category is economic damage and the second is non-economic damage. And some of the elements that a plaintiff may be compensated for include past and future medical care costs, lost earnings, past and future pain and suffering, past and future disability, disfigurement. So an example of an economic damage would be lost wages or past medical bills. And example of a non-economic damage would be pain and suffering. One distinction in Illinois that is kind of unique to medical malpractice cases is that you cannot sue for punitive damages. Often you hear in product liability cases where a manufacturer or company can be sued for punitive damages. That is not an element that is recoverable in Illinois.
We are talking with Susan Capra, she is a partner at Clifford Law Offices in Chicago, and their website is www.CliffordLaw.com. Her telephone number is (312) 899-9090. This is the Legal Forum on AM 750 WNDZ, I’m your host, Big John Vick and if you have a question regarding medical malpractice, we’d love to hear from you at (773) 631-8202, (773) 631-8202.