Page 27 - Anatomy of a Medical Malpractice Lawsuit

SVMIC Anatomy of a Medical Malpractice Lawsuit

allowed the proposed experts to testify (although this rarely

occurs). It is then up to the jury to weigh the credibility of the
witness and either accept or reject the testimony.

Breach of the Standard of Care (Negligence)

The third element the plaintiff must prove is that the
defendant’s actions or inaction breached the standard of care

as established in the previous section (i.e., negligence). Again,

in most cases, expert testimony is required to establish that the
defendant’s care or conduct fell below the applicable standard

of care as this is a matter of professional opinion. The plaintiff’s
expert will offer testimony that the standard of care was not

met, and the defense will offer expert testimony that it was met.

Again, the jury weighs the credibility of the experts and
decides which testimony to accept and which to reject.

There are some cases that do not require expert proof to

establish that a breach occurred. The law refers to these cases
by the Latin term res ipsa loquitor which means ‘the thing

speaks for itself’. These are cases where the negligence is so
obvious that it is accepted as a matter of law. Examples

include: amputating the wrong limb; removing the wrong

organ; giving a patient with a known drug allergy that
medication; a foreign object is retained; etc. These types of

cases are typically impossible to defend on a standard of care
basis.

Damages

Once the plaintiff has established that the defendant
committed a breach of the standard of care, the final element

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