Reprints Share. Report Abusive Comment Thank you for helping us to improve our forums. Is this comment offensive? Please tell us why. Restricted Content You must have JavaScript enabled to enjoy a limited number of articles over the next days. Please click here to continue without javascript.. View PDF. The viability of a medical malpractice claim is based on four important factors explained below:.
A medical malpractice lawsuit is only viable if the medical professional in question had a duty to act on behalf of the victim. This duty to act must be according to the generally accepted standard of care for such a provider with his or her level of training and skill. If this doctor-patient relationship does not exist, no case can be made. Successful litigation in a medical malpractice case requires proof that the above-mentioned standard of care was breached.
This proof can be provided through the combination of an experienced medical malpractice attorney and expert witnesses. As the plaintiff, you must prove that the medical provider failed to deliver the expected level of care for someone having his or her level of training and capability — and thus acted negligently.
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Kamer and Aubrey A. Slack and Peter A. Paolillo and Ellen L. Wrongdoing does not only produce the harm that is the subject of a tort suit. It also necessarily produces uncertainty regarding what would have occurred without the wrongdoing. As a result, in proving causation, plaintiffs must overcome an information deficit that is not of their own making. From case to case, there is variation in the degree of uncertainty about causation, and in the extent to which that uncertainty is fairly attributable to the underlying tort.
However, the degree of uncertainty tends to be high in cases where defendants failed to take reasonable precautions, since the plaintiff must construct, almost out of thin air, the counterfactual impact of the untaken precautions.
Likewise, where underlying torts involve concealment or the failure to gather or seek information, the directly generate uncertainty. The impact of burden shifting in such scenarios would not be radical, costly, or harmful to the aims of justice.
Causation, properly understood, is intended to be a minimum threshold requirement, wholly distinct from the negligence and scope-of-liability analyses.
Relieving a plaintiff from the burden of proving causation would not relieve the plaintiff from proving negligence and proving that the negligence foreseeably gave rise to a risk of the harm that befell the plaintiff.
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