There are several legal theories on medical malpractice.

Negligence

Most theories in medical practice is anchored on the fact that there was negligence in the performance of duties.

• The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);

• The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the duty owed the patient;

• A causal relationship between the health care professional’s deviation from the standard of care and the patient’s injury;

• Injury to the patient.

In order to make a medical professional negligent, it should be proven that his actions fell behind the standard of care that was required given a situation. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. In lawsuit for claims on medical malpractice, the plaintiff has to prove his claim by presenting testimony and expert witnesses.

Negligent Prescription of Medications or Medical Devices

There could be various reasons for a medical professional’s negligence. It could be because of error in prescription. It could also be because of failure to follow the instructions given by the manufacturer of a drug. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a “learned intermediary,” which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. It is the duty of the physician to advise the patient of the possible harmful effects of a certain medication before the patient actually takes in the medicine.

Informed Consent

In many cases, it is a form of negligence if the medical professional failed to obtain the consent of the patient. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed. Thus, it will always be an important factor that the doctor should always provide the patient with information on the positive and negative aspects of certain treatments.

Breach of Contract or Warranty

As a general rule, the doctors should not promise any result for the patient. This is because they themselves are not certain of the outcome. If they do, failure to execute the promised outcome is considered as breach of contract. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure, and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty. Thus, failure of the doctors to produce the desired outcome can make them liable for medical malpractice.

Problems of Proof: The “Res Ipsa” Doctrine

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. It is usually very difficult to prove medical malpractice. This can be attributed to the fact that the medical professionals are the ones who work on the medical reports. They would have already eliminated any discrepancy that has happened. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. Furthermore, health providers may distort some facts on the record to avoid liability.

Fortunately, the law recognizes that plaintiffs face certain difficulties in proving medical negligence. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as “res ipsa loquitur.” The meaning of this phrase, in layman’s term is that the thing speaks for itself. This has been recognized in order to eliminate the burden from the patients or injured parties to prove the guilt of the medical professionals.

Because of this doctrine, the burden is shifted from the plaintiff to the defendant. The defendant would then have to prove that he was not negligent instead of the plaintiff proving that the defendant was negligent. To invoke this doctrine successfully, a plaintiff has to show that:

1) The evidence that could prove the actual injury cannot be accessed by the plaintiff.

2) The injury is not just an injury usually caused by negligence of another person.

3) The plaintiff was not responsible for his or her own injury;

4) The plaintiff did not have control over the event. It means that it was the medical professional that was in absolute access to what may happen then.

5) The injury could not have been caused by any instrumentality other than that over which the defendant had control.