What Are the Four Elements of Medical Malpractice?

A doctor has a duty to exercise reasonable care for his or her patients. It's part of the oath that physicians take when they receive their license and swear to treat people according to their ability and training.

But what happens if a physician fails to live up to these responsibilities? What is medical malpractice, and how does it differ from other kinds of negligence? The answers depend on where you live -- but in general, there are four elements that must be proven in order for someone to claim medical malpractice:

1. A Duty of Care: This exists because the physician accepted responsibility for an area of medical treatment such as surgery, psychiatry or obstetrics. Thus, even if a patient hires a private contractor such as an independent medical examiner (IME) to examine him or her for a personal injury case, the contractor has an ethical duty as part of his or her professional responsibility to provide this service in a reasonable and responsible manner.
2. Breach of Duty: The next element is that the physician failed to meet the professional standard of care -- what might be called malpractice. This means he/she is providing treatment that falls below what other doctors would consider reasonable and appropriate. If it were just one instance, then the doctor could argue that it was an isolated incident and not predictable according to medical standards. But if there's a pattern of behavior indicating failure to follow procedure, then the physician will typically be held liable for this. A 2005 study found that 94% of doctors have performed at least one act that could be construed as falling below the standard of care in 2005.

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1. Causation: For this element, you must prove that the breach of duty was a direct cause or contributing factor in bringing about your injuries or emotional problems. It's not enough to show that the doctor made an error; it has to be related directly to why you were injured, became ill, etc. Otherwise known as proximate cause, this usually relates to negligence during medical treatment (surgery or medication), failure to diagnose conditions that led to your injuries and/or misdiagnosis which results in damage due to improper treatment for what might otherwise have been treatable non-injury causes. The burden is on the patient to establish that there was no intervening factor between the physician's treatment and the patient's injuries. For example, if you drive your car into a tree after being treated by Dr. X for insomnia, you probably won't win this element of your case because it wasn't Dr. X's alleged negligence that caused your resulting injuries -- it was your own failure to heed his advice not to drive while sleepy. The court would find that any damages suffered were due to intervening forces.
2. Damages: This is perhaps the most straightforward element in medical malpractice cases: did you suffer an injury or did someone close to you die as a result of this doctor's error? How severe is the injury, and how does it affect your ability to resume normal life and/or work? This is where you might want to consult a lawyer who specializes in this area because it's often the hardest part of proving medical malpractice.

What are some examples of medical negligence?

Negligence is the third most common reason for medical malpractice lawsuits, making up about 16-20% of these cases.

Negligent care may result from the improper diagnosis, treatment, or management of a patient's condition. It can also include failure to diagnose - not properly identifying an illness or disorder despite symptoms that would alert a reasonable person that something was wrong. Negligence is sometimes referred to as inadvertent error - careless mistakes made in good faith by health professionals who are trying to provide quality care to their patients.

Professional negligence is unintentional and does not involve malicious intent on the part of the provider; it is usually due to poor judgment or lack of skill (incompetence) rather than intentionality (e.g., purposeful use of substandard therapy to advance some other interest).

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Negligence does not always result in an injury. If the mistake is minor, if it's caught early, or if there are no lasting health effects, then the patient may experience little or no negative impact from the malpractice. The most serious injuries associated with malpractice occur when a provider fails to timely diagnose a condition that's treatable if identified and treated early. In these cases, patients can suffer permanent harm or even death because treatment was delayed.

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