You may have heard the statistic that medical error is the third-leading cause of death in the United States. Studies estimate that between 250,000 and 440,000 deaths per year are linked to mistakes made by medical professionals.
Why, then, is it so difficult to prove wrongful death due to medical malpractice? The answer is complicated and comes back to proving liability. While the facts about your loved one’s death may seem cut and dry to you, it’s often more complex in the eyes of the law.
How does a medical malpractice wrongful death attorney prove liability? Read on to learn more.
Factors Involved in Medical Malpractice Wrongful Death
In legal terms, liability refers to one party’s responsibility for the outcome of another party. In this case, we’re discussing a medical professional’s responsibility for a patient’s death due to medical malpractice. Let’s take a closer look at the four factors involved in establishing both liability and negligence.
Duty of Care
Duty of care is generally the easiest thing to establish in a medical malpractice wrongful death case. Duty of care entails that a medical professional must provide care that meets the accepted standard. You can establish a duty of care by proving that the defendant agreed to treat the deceased in a professional capacity.
Breached Duty of Care
Breach of duty of care is significantly harder to prove. Breaching duty of care means that a medical professional didn’t meet the accepted standard due to neglect or intent to harm. Common examples include:
- Failure to provide a reasonable diagnosis (i.e., ignoring family history or other signs of predisposition)
- Surgery performed on the wrong part of the body or the wrong patient
- Writing reckless prescriptions (i.e., prescribing a medication that contains a patient’s known allergen)
In all these examples, the medical professional in question failed to take reasonable and acceptable steps to provide better care.
Resulting Death
If a medical professional makes a mistake that does not lead to any significant harm, there is no legal standing to sue. However, wrongful death plaintiffs build the case that a medical error was the direct cause of their loved one’s death. In other words, you’ll need to prove that the breach of duty of care was more likely to have caused their loved one’s death than anything else.
Resulting Financial Strain
Finally, wrongful death claims fall under the umbrella of civil claims. These claims seeks to restore financial justice. In addition to proving the above, you will need to demonstrate that the death of your loved one has resulted in serious financial strain, often in the form of outstanding debt, lost income, and more.
How a Medical Malpractice Wrongful Death Attorney Builds a Case
Because these four factors are difficult to prove, you should always hire an experienced wrongful death attorney before filing your wrongful death lawsuit. Let’s take a look at three of the most important things your attorney will use to build your case and prove liability.
Documentation
While witness testimony can strengthen a wrongful death lawsuit, an attorney will rely on the facts as much as possible. In a medical malpractice case, this will include all related medical records, including items like:
- Documentation of the patient’s condition
- Prescribed and in-office treatments
- Patient responses to prescribed treatments (i.e., whether or not their condition was improving)
- Lab results (e.g., bloodwork, X-rays, etc.)
Attorneys will use this type of documentation to establish duty of care, breach of duty of care, and the resulting death. To determine damages, they will use items like:
- Pay stubs
- Medical bills
- Retirement account statements
An experienced attorney will also make a case for intangible damages. These include things like pain and suffering sustained by both the victim and the victim’s loved ones. It takes an experienced attorney to fight for intangible damages because they’re not tied to any tangible financial losses.
Expert Testimony
In a medical malpractice case, expert testimony is crucial. In this case, expert testimony would come from medical professionals who hold the same title as the defendant.
The purpose of expert testimony is twofold. The first is to establish the acceptable standard of care in the defendant’s line of work and area of the country. The second is to explain how meeting that standard of care would have prevented the victim’s death.
Legal Interpretation and Precedent
For plaintiffs in wrongful death cases, emotions are high. Plaintiffs have both a personal investment in the outcome of the lawsuit and a lack of legal knowledge, which can hinder their ability to put together a sound case.
An experienced attorney provides legal expertise thanks to years of education and hands-on experience with similar cases. They will use not only their knowledge of the law but also their knowledge of similar cases and their outcomes to establish liability and negligence.
Factors That Can Complicate Liability
When you file a wrongful death lawsuit against a medical professional or organization, they won’t be defending themselves. They’ll have their own attorneys who are experienced in medical malpractice cases and, more specifically, in disproving liability.
What are some of the factors that can complicate liability? One of the most obvious is a lack of duty of care. If a person follows unofficial or informal medical advice, the medical professional who provided it will very rarely be held accountable for the results.
Another complicating factor is multiple causes of death. For example, it may be difficult to prove that something like a failure to diagnose caused the death of a patient with comorbidities. The defendant’s team will often use a patient’s medical history to undermine the claims in a lawsuit.
The defendant’s team may also use a patient’s medical history to position the deceased as liable. Each year, over 100,000 deaths occur because patients don’t follow their doctors’ orders. The defense may argue that the deceased’s non-adherence outweighs the alleged breach of duty of care.
Call Cummings Law for Your Wrongful Death Lawsuit
If you recently lost a loved one to medical malpractice, don’t fight your case alone. Establishing medical negligence and liability can prove difficult, especially when the defense is armed with experienced attorneys of their own.
If you’re looking for a medical malpractice wrongful death attorney in Nashville, call Cummings Law. Brian Cummings has over 20 years of litigation experience and has won over $29 million for clients like you in the past few years alone. Contact us today to schedule your free case consultation.
Posted in: Medical Malpractice