Patients have to prove the following elements to win a case against the doctor or hospital:
- The doctor or hospital did something negligent.
- What he/she did was the actual and legal cause of some damage to her.
- The amount of money that would adequately compensate the patient for the damage caused by the doctor (but not for any underlying condition).
In nearly every medical malpractice case, the only witness that can tell the jury that a doctor was negligent in the care of a patient is another doctor. Usually that doctor must be one who has the same type of qualifications as the doctor being sued. Doctors cannot be held responsible for bad outcomes. They are legally liable only if their conduct "violates the standard of care" for doctors like them. The phrase "standard of care" means that the doctor did something that reasonable, competent doctors would not do, or did not do something that reasonable competent doctors would do. In some types of medical conditions, the standard of care is well established and written down. In others, it is more elastic. General principles governing the conduct of all doctors exist.
- The doctor must take a history from a conscious, competent adult.
- The doctor must create a differential diagnosis - a list of the reasons for a particular sign or symptom - and make sure through whatever means necessary that the most dangerous of those potential conditions did not cause the symptoms. However, no doctor may ever simply assume that a symptom is accounted for by a common benign condition.
- Doctors must keep up with the changes in medical knowledge.
The concept of differential diagnosis is taught in the first year of medical school. It means that the doctor is required to think through all the possible things that could account for the condition and through the process of testing and logical analysis arrive at the correct diagnosis.
One of the grave difficulties that injured patients have is finding competent doctors who are willing to break the code of silence and tell the truth about another doctor's negligence. Most cases of negligent behavior by doctors are never filed because of the rarity of other doctors willing to risk ostracism by their colleagues in an effort to get compensation for victims and to improve medical care. Some doctors who are willing to help patients hate lawsuits and courtrooms and generally charge very high hourly rates for their work on cases, creating an additional obstacle. Five hundred dollars an hour is not unusual. Fees of even $1,000 per hour are sometimes charged. Lawyers like me who work on a contingent fee are also usually willing to advance the costs of these experts so that the individual patient is not required to pay the expert's fees. However, the cost of expert witness evaluations must always be a consideration in determining whether or not to accept a case.