Medico-legal #2
What Makes a Medical Malpractice Lawsuit?
The damaged party, the plaintiffs, must "prove" three things in court if they are to prevail: Negligence, proximate cause, and damages. The burden of proof is on the plaintiff's side. The defendant is presumed innocent until proven guilty.
The threshold of "proof" varies from one jurisdiction to another. For example, in California civil court, the plaintiffs must prove "more likely than not". In other jurisdictions, this could be "beyond a reasonable doubt."
"Negligence" means medical treatment below "community standard." Who establishes this standard? It is now recognized that, at least in the US, the entire country is the standard because of improved communication and exchange of ideas. The community standard is the same in Wyoming as it is in New York; what is medically correct in one state is medically correct in another. When it comes to international community standard, case law is less clear. Is the doctor in Tokyo held to the same standard as the doctor in LA? How about Tokyo versus a little town in Hokkaido?
The more interesting question is, who is qualified to testify in court regarding this "community standard"? Each side presents an "expert" in the field, to testify his opinion regarding the case in question. The credibility of these expert witnesses can be challenged by the opposing side. So, because it is a human being that is testifying about his personal opinion about "community standard", it becomes "whatever the expert says."
"Proximate cause" is the second burden of proof. The plaintiffs must prove that the negligent act caused the damages, and, further, that without the negligent act the damages would not have resulted. Even if the doctor makes a mistake and admits to it, if it were not the "proximate cause" of the bad result, he is exonerated. Conversely, if the bad result were going to happen anyway, the doctor is exonerated.
"Damages" is what the plaintiff sustains. It would be a simple matter to assign a monetary value to certain body parts. It gets complicated, however, because certain persons have more earning capacity than others. If a person who has a large income is unable to earn that income because of a bad result of his medical care, he is entitled to sue for larger damages. Obviously, a retired person with no income is entitled to sue for a smaller income. This brings up another interesting question: do doctors ever avoid risky procedures in wealthy persons?
The above are the "economic" damages, where damages can be easily calculated. "Non-economic" damages, such as loss of consortium, pain and suffering, lost opportunities, cause a whole new set of problems. According to tort law, these nebulous and abstract "things" must be assigned a dollar value. This is where multi-million dollar judgments come in. If someone can prove that severe, chronic, unremitting pain is causing a level of stress so high that he is unable to function normally as a highly paid executive, he has a lot of damages.