What Constitutes Medical Malpractice
A medical provider is negligent—i.e., commits medical malpractice—when the provider either (1) fails to follow the “accepted standard of care” and injures a patient; (2) promises the patient a specific outcome that does not transpire; or (3) conducts a procedure to which a patient did not provide “informed consent” and injuries the patient.
Failure to Follow Accepted Standard of Care. A medical provider is liable for malpractice if a patient can prove the provider failed to follow the “accepted standard of care”. This means the patient must show the provider failed to use the degree of care, skill, and learning expected of a reasonably prudent provider acting in similar circumstances. To make that showing, the patient generally must present expert medical witness testimony to establish the proper standard of care, i.e., to establish what a reasonably prudent provider should have done to provide the patient with proper care. The patient generally must then also present expert testimony that establishes the specific provider involved in the case did not comply with the standard. Further, once the patient establishes the provider failed to follow the standard of care, the patient must further show the provider’s failure caused the patient to suffer an injury.
Failure to Satisfy Promise. A medical provider is liable for malpractice if a patient can prove they either (1) suffered an injury the provider promised would not occur or (2) does not obtain a specific result the provider promised. Courts have construed this type of claim narrowly. The promise generally must be a specific, express guarantee; statements of opinion as to outcome or potential injuries are normally not sufficient.
Failure to Secure Informed Consent. A medical provider is also liable for malpractice if a patient can prove that they suffered an injury from a medical procedure to which they did not provide “informed consent”. To prove this type of claim, the patient must prove (1) the provider failed to inform the patient of a material fact relating to the treatment that caused the injury; (2) the patient consented to the treatment without being aware of or fully informed of the material fact; and (3) a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact.
By statute, the patient must generally present expert witness testimony to provide information as to one of four types of material facts. Thus, the patient generally will need to present expert testimony to describe relevant information concerning the (1) nature of the treatment proposed and given; (2) anticipated results of the treatment proposed and given; (3) possible alternative forms of treatment; or (4) recognized serious possible risks, complications, and anticipated benefits involved in the treatment given and in the possible alternative treatment forms. Once the patient shows they were not given the material information the expert witness described, the jury will then decide whether a reasonable patient would have consented to the treatment given had the patient been given the information the expert witness presented.