3 Items You Must Show To Win Your Clinical Malpractice Claim

Each clinical malpractice case is made up of three distinct elements. These elements must be met and satisfied before doing anything else. Before assessing your claim, before considering issuing it in Court, before even submitting the Claim Letter, you must be sure that your claim will meet these three elements.

The reason is that if your claim does not meet these elements, your claim will not be successful. The law established that in order for a defendant to be found guilty of negligence and to pay compensation, these three elements must be proven.

In this article, we will explain these items so that you can better understand your claim.

What are the three elements that you need to demonstrate?

Definition: Clamant – person filing the claim

For a claim to be successful, the claimant must show that:

One: That the medical professional owed them a duty of care. This is not a challenge to prove in clinical malpractice claims, as it is accepted that medical professionals owe their patients a duty of care just because of their relationship.

Definition: Balance of probabilities – that it was more likely than not that the Defendant was negligent.

Two: the medical professional must have behaved in a way that breached his duty of care. This is more difficult to prove and the Plaintiff has an obligation to comply with the legal test. The legal proof is that, on the ‘balance of probabilities’, the actions or omissions of the medical professional fell below the standard that would be expected of a reasonably competent and experienced member of the medical staff.

This is usually proven by obtaining a medical report from an experienced professional that will say whether or not the claimant’s treating medical professional acted in such a way as to be deemed negligent.

Three: that the breach caused, or materially contributed to, the Plaintiff’s injury or loss.

Those are the three elements that must be proven in court for a claim to be successful. This is the legal test that all claims must pass.

It is not enough that only one or two of these elements are met, they all must be met. So if a doctor was negligent and failed to diagnose a patient when they should have from the evidence, or did not perform the proper tests that would have allowed for a diagnosis, then they will be considered negligent. However, if the patient’s outlook / prognosis and / or treatment would have been the same even if a diagnosis had been made earlier, then the claim will fail because the third item has not been met.

It is not enough for a medical professional to be negligent, the claimant must have suffered as a result.

Element one: duty of care

All doctors must take care of their patients. This item will always be satisfied if you file a claim against a medical professional who was treating you.

Element two: duty of care breached

To be successful, you will need to show that the care you received from your medical professional was below the standard that you would reasonably expect from a qualified physician.

However, you should be aware that just because you are not satisfied with the result of your treatment or have not been warned about all the possible risks related to your treatment does not always mean that the doctor was negligent.

In order for the doctor to be considered negligent, he must show that a significant number of respected doctors would have carried out his treatment differently or to a higher standard.

An attorney will do this by instructing a medical expert. That medical expert will review your medical notes and visit you for an evaluation / appointment. They will then produce a report detailing their opinion as to whether your treating physician did not meet the standard and therefore breached their duty of care to you.

Element three: you suffered as a result of neglect

To be successful in court, you must show that, due to negligence, you suffered an injury or a worsening of your symptoms or a prolongation of your symptoms.

Medical treatment does not have to be the sole cause of your current condition, but it must have materially contributed to it. Which means that it must have been significantly (more than 50%) responsible.

For example, for late diagnosis of the disease, you will need to show that if the disease had been diagnosed at an earlier stage, then your treatment would have been less invasive, your risk of survival would be significantly higher and / or permanent. disability would not have occurred.

Example– A GP sees a patient with numb toes after a nasty blow, but does not test foot pulses or diagnose arterial damage and / or does not refer the patient to a vascular specialist. Later, the patient is diagnosed with vascular injury and death of the toes due to lack of blood supply. Next, the patient’s toes must be amputated.

To file a successful claim for clinical negligence, the claimant must show that early diagnosis would have meant keeping some or all of the toes and / or not having to undergo surgery and / or not now risking further amputations in the future due to damaged arteries.

While the fact that you suffered as a result of negligence may not seem too difficult to prove, it is generally the hardest part of the claim. Many of those who file clinical negligence claims were already suffering from an illness or injury and separating what they suffered due to negligence and what they would have suffered due to their original injury or illness is very difficult and often involves a lot of “what,” Yes it is “.

Again, a legal professional would normally instruct a medical expert who could say that on the “balance of probabilities” if the correct treatment had been given, the plaintiff would have had a more pleasant outcome.

Conclution

In conclusion, you must meet three elements for your claim to be successful. You must show that the doctor owed you a duty of care, this is commonly accepted, so proving it is simple. Second, you must show that the doctor failed in that duty by failing to pay proper attention and care or by being careless while treating you. Third, that the breach of duty has caused you an injury.