The most common cause of action for medical malpractice is medical negligence. To succeed in such a claim, the injured patient must prove the following:
1. The health care provider had a legal duty to protect the patient from
harm. Often times, to prove this element, the patient need only prove
that the health care provider undertook care or treatment of the patient.
2. The health care provider breached that duty (i.e., failed to conform to the
relevant standard of care within the medical community). Often times, to
prove this element, the patient will need to retain an expert in the
relevant medical care to testify to the errors committed by the health care
professional. Sometimes, however, the negligence is so obvious that the
law infers negligence. This is called res ipsa loquitor (i.e., the injury speaks
for itself'), and it applies in situations like where a surgeon operates on the
wrong body part.
3. The health care provider's breach was a proximate cause of the patient's
injury.
4. The patient suffered some sort of damages as a result of the injury, which
include financial losses (e.g., lost wages, medical expenses, and life care
expenses) and physical and psychological harm (e.g., loss of a limb or
organ, reduced enjoyment of life, pain and suffering, and emotional
distress). in some cases, the patient may also be entitled to punitive
damages, which are only awarded when the health care provider acts
wantonly and recklessly.