PROVING MALPRACTICE

A plaintiff initiates a lawsuit by filing papers with the court claiming that he or she was harmed by the defendant and is entitled to legal redress. These papers must set out the plaintiff's prima facie case: the statement of facts and legal theories that establish that the plaintiff has a legally enforceable claim against the defendant. There are four elements to a prima facie case of medical negligence:

1.

Duty--a statement of the facts that establishes the legal relationship between the physician and the patient. (See Chapter 9.)

2.

Breach--a statement of facts that illustrate that the defendant breached the legal duties implied in the physician-patient relationship or duties generally imposed on members of society.

3.

Causation--that the breach of the defendant's duty caused the plaintiff's injuries.

4.

Damages--the monetary value of the plaintiff's injuries. (See Chapter 4.)

Upon the filing of these claims, the defendant may ask the judge to dismiss the plaintiff's lawsuit for deficiencies in prima facie case. For the purpose of this review, the judge will assume that the facts presented by the plaintiff are correct. If, despite this assumption, the plaintiff's prima facie case is incomplete or legally unfounded, it may be dismissed, or the plaintiff may be given an opportunity to amend it to satisfy the defense's objections. During the pretrial phase of the lawsuit, the plaintiff must present legally sufficient evidence to support the allegations in the prima facie case.

• Duty
• Standard of Care
• Establishing the Standard of Care
• Causation

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