Do
I Have a Case?
Lawyers
at our firm are frequently asked the question, "Do
I have a case?" The answer, unfortunately, is not
always a simple one. Injury cases typically have three
elements: a mistake, an injury, and proof that the mistake
caused the injury. The analysis can be most clearly
illustrated by examining a medical malpractice or product
defect case.
In order to evaluate a medical malpractice case, the
first item to address is whether the physician, nurse,
or health care provider did something improper. In order
to prove this fact, the law - in most states - requires
that the injured victim introduce evidence from another
similar person (i.e., physician, nurse, or health care
provider) to testify that there was a mistake made.
This is often called establishing that there was a violation
of the "standard of care." There are, of course,
some exceptions to the rule. Proving this violation
is often viewed as the most difficult part of a malpractice
case.
Next, it is imperative to prove that there was an injury
as a result of the violation. Although this is sometimes
the least difficult element of proof, it maybe sometimes
difficult to prove nonetheless. Take the situation where
a health care provider fails to advise the patient of
the risks of a certain procedure. The health care provider
may have violated the "standard of care,"
but if nothing actually went wrong during the procedure,
then there is no case. Similarly, the situation may
arise where a health care provider orders an improper
medication for a patient, but the medication mix-up
is harmless. Again, there may be a clear violation of
the standard of care, but no damages.
Finally, the injured person must prove that her injury
was caused by the mistake. This is where claims may
get tricky. The injured victim must prove that the particular
violation of the "standard of care" caused
the victim's injury. In certain cases the connection
may be simple. For example, a basic case might arise
in a situation in which a physician leaves a sponge
in a patient during surgery, and that patient subsequently
develops an infection. By contrast, a more complex matter
might involve proving whether a birth injury is necessarily
related to a physician's failure to perform a timely
c-section. Did the delay in performing the c-section
cause the birth injury? Or was the birth injury caused
by genetic factors long before the delivery?
Determining whether a client has a case is a complex
matter. You should review your case with a competent
lawyer, and let the lawyer make the decision as to whether
you have a case!
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