II. Medical Malpractice:
In the same sense that the ordinary body of negligence law defines negligence as the doing or the failure to do something that a person of ordinary prudence would or would not do under the same or similar circumstances, the law of medical malpractice defines negligent medical conduct as the doing or the failure to do something that a reasonably prudent doctor or other health care professional in that field would or would not do under the same or similar circumstances. In negligence law the fictional "reasonable man" standard has been created to evaluate the conduct of the defendant alleged to have been negligent. In medical malpractice law the fictional "reasonably prudent health care provider" standard has been created. In both instances the terminology of the attorneys revolves around the issue of whether the doctor, hospital or other health care provider was "negligent." Some attorneys note that the "reasonable man" standard is objective, in the sense that it is a standard applicable to all human beings, whereas the "reasonably prudent health care provider" is more subjective, in that it allows the medical profession to define the standard by which its conduct will be judged. These attorneys point out that that standard may fluctuate over periods of time as short as months, depending on available technology. Other attorneys respond that the law holds even medical professionals to certain minimum requirements of care, and evidence presented by a defense lawyer in a medical malpractice lawsuit that few people in a given medical field exercise caution in an area where caution should be exercised would not preclude a finding in the same law suit that a doctor, chiropractor or other health care provider was negligent.
In medical malpractice cases the plaintiff's medical malpractice lawyer must establish through expert testimony the standard of care required of doctors or other health care providers in the field of the defendant and that the defendant breached or failed to adhere to that standard of care, thereby causing the plaintiff's injury. A negative result in medical treatment in and of itself does not mean that the doctor, hospital or other health care provider committed malpractice. Medical treatment carries with it no guarantee of a successful outcome. In many medical procedures there are risks which cannot be avoided even if the doctor exercises the greatest caution. These are called unavoidable risks. On the other hand, risks which are unavoidable even when the greatest care has been exercised, may in a particular case, be shown by an attorney to have resulted from lack of due care by the doctor or other health care professional.
IV. Proximate Causation:
Just as in negligence law, medical malpractice attorneys must show that the damages were proximately caused by the malpractice of which the doctor or other health care practitioner is accused. Unlike a simple accident case, most plaintiffs are already injured or ill at the time they are victimized by medical malpractice. Therefore, medical malpractice attorneys must, through the use of their experts, separate out the damages that would have resulted even if the plaintiff had received appropriate medical care from the damages that actually resulted with the addition of inappropriate medical care. It is often difficult for the victim, who is afflicted with serious medical problems, to appreciate the requirement of the law that his malpractice attorney prove that the malpractice worsened or failed to stem a worsening of his/her medical condition. In addition, causation must be proved to a reasonable degree of medical probability, and mere possibility is generally not sufficient. If the Plaintiff's attorney is only able to demonstrate that a given outcome might (as opposed to "probably would") have been avoided by a particular treatment, there is a likelihood of a ruling by the judge in that lawsuit that the Plaintiff's attorney has not met the burden of proof.
