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A Short Overview of Medical Malpractice

A Short Overview of Medical Malpractice Burden of Proof

In common law the burden of proof will always fall on the plaintiff. This means that to prove his or her case the evidence will need to be compiled by the plaintiff against the defendant. In criminal law it is easier to see where the burden of proof falls to, the state that provides the evidence against the accused after exhausted police work. Then it goes to trial and the case is settled. For common law, and malpractice law specifically, sometimes the burden of proof is harder to establish since in medical malpractice can manifest in many different ways.

However, there are certain elements that need to be within the scope of a burden of proof argument on behalf of the plaintiff. The lawyer will need to show that the defendant was negligent and caused harm to the plaintiff. Negligence can even manifest itself in a number of ways from misdiagnosis to lack of treatment all of which can be considered substantial burden of proof evidence. There are also different forms of malpractice incidents that need to be taken into account.

Some forms are more obvious than others. For example, the old ‘he left the scalpel behind’ argument is a clear incidence of negligence that manifested itself through a physical form. The burden of proof is easy in these cases- show the scalpel was left behind and that equates to negligence. On the other hand, wrongful death lawsuits put into question a doctor’s opinion and can have many more facets to the case in order to establish the necessary burden of proof.

Medical Malpractice Defenses

There are many different aspects to medical malpractice law. There, of course, two sides to the case the defendant or multiple defendants and the plaintiff but the avenues they take in medical malpractice are much different. First it should be noted that malpractice cases in the medical field are very expensive. A hospital or doctor may have a team of lawyers working against the plaintiff who may only have one. On top of that because it is a niche market in the legal profession malpractice lawyers demand a high rate of pay. Sometimes malpractice lawsuit cannot be achieved because the costs will outweigh the benefits.

There are also a variety of ways to prove negligence on the part of a doctor or prove that the plaintiffs claim is invalid on the defendant’s side. Cases can be long an arduous in some cases as if the negligence is not obvious then it would rest on a doctors opinion, which in some cases, can be protected under finer legal doctrines. This in turn lengthens the case as medical malpractice lawsuits, concerning a doctor’s opinion, will usually involve the extensive referencing of scholarly journal and the use of expert witnesses on both sides to make their respective cases.

What makes medical malpractice more difficult than, for example criminal law, is that the legal statues vary greatly from state to state defining what actually constitutes medical malpractice. This is due to the fact that there is no overarching federal statue guiding medical malpractice law.

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