Medical Malpractice

Medical malpractice is professional negligence by act or omission by a healthcare provider in which care deviates from accepted standard of care in the medical community and causes injury or death to a patient.

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.

1. A legal duty was owed--a legal duty exists whenever a hospital or healthcare provider undertakes care or treatment of a patient.
2. A duty was breached--the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors.
3. The breach caused an injury--the breach of duty was a proximate cause of the injury or death.
4. Damages--without damages (losses which may be measured with money or emotional damages) there is no basis for a claim, regardless of whether the medical provider was negligent.

The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required and other technical issues. To qualify as an expert witness a person must have sufficient knowledge, education, training or experience regarding the specific issue before the court to qualify the expert to give reliable opinions for the jury to consider. In North Carolina, certain other legal requirements must also be met.

The jury must then weigh all the evidence and determine which evidence is most believable in the process of reaching a verdict.

A jury will have to answer two questions in reaching a verdict. The first question is: “Was the plaintiff harmed by the negligence of the defendant?” In other words, was the plaintiff’s injury or death caused because a healthcare provider failed to meet the applicable standards of practice. If the answer to the first question is “Yes”, then the jury must answer the second question: What amount is the plaintiff entitled to recover?” The answer to the second question is one sum of money to compensate the plaintiff for all of his or her harms and losses that were caused by the negligence of the defendant.

The plaintiff’s damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages, medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb, loss of the use of a body part, scarring, physical pain and mental suffering. Punitive damages are rare and are only awarded in the case of reckless conduct.