In our last post, we spoke briefly about the basic elements in a medical malpractice case. To briefly recap, these are: duty; breach; causation; and harm. Here, we’d like to talk briefly about the harm element, which kind of ties together the first three elements.
It is easy to assume that, in medical malpractice cases, harm is relatively easy for a patient to prove. After all, you wouldn’t be suing your physician for malpractice unless you were injured somehow. This is true to an extent, but the issue can get complicated by the fact that the harm suffered by the patient in a medical malpractice case must be causally connected to a legally appreciable degree to the physician’s established breach of duty.
So, one of the difficulties with the harm element is the fact that it isn’t always reasonably certain that the harm is legally connected to the physician’s negligence. Negligence, in and of itself, does not make for a medical malpractice case. There must have been harm that was legally caused by the negligence. This is a technical issue that usually requires the testimony of expert witnesses.
Another difficultly with the harm element is a practical one: the question of whether the harm is great enough that it warrants the trouble of pursuing medical malpractice. In some cases, the physician may have acted negligently and this may have caused harm to the patient, but not so much harm that the probable damages in the case will outweigh the costs.
In our next post, we’ll pick back up on this issue, which ties the harm element into the damages aspect of medical malpractice litigation.
Source: icle.org, “Michigan Law and Practice; Chapter 6: Health Care Malpractice,” Heidi L. Salter-Ferris, Accessed Dec. 5, 2014.