There are four basic elements that a patient must prove in order to have a successful medical malpractice claim. The first element is that the physician had a duty to treat the patient in a certain way. The creation of the duty arises from the physician-patient relationship and usually begins when the physician agrees to treat the patient. Questions of duty often arise when the physician is merely a consultant.
The second element is a breach of the standard of care, or what is often called negligence or professional malpractice. In most jurisdictions, expert testimony is required to determine what is required by the standard of care and if the physician breached that standard.
The third element is causation, or whether or not the breach of the standard of care caused the alleged damages. This issue is often complicated by the patient’s injury or medical condition, which originally led to the medical treatment. Expert testimony is often also required regarding this element.
The last element is damages. Damages are often broken down into economic damages, noneconomic damages and punitive damages. Economic damages encompass items such as lost wages and medical bills, noneconomic damages include pain and suffering and punitive damages are designed as punishment. Not all states allow punitive damages, and some states have caps on noneconomic damages.