COVID-19 Notice: The Perecman Firm has returned to in-person operation in accordance with safety regulations set by New York State and CDC health officials. Our attorneys will continue to provide top-notch legal representation and are available to discuss your case in person, over the phone, via email or video.

How Can Someone Prove Medical Malpractice?

A number of key legal issues must be proven in order to win a medical malpractice case.

Most medical malpractice lawsuits in New York attempt to prove that a doctor, nurse pharmacist, hospital, or other health care provider was negligent in treating a patient. Negligence basically means not exercising reasonable care.

In order to win a medical malpractice case, a medical malpractice lawyer must prove:

  1. The health care provider/defendant owed a duty to the injured plaintiff/patient as part of a professional medical relationship. A provider-patient relationship exists when the health care provider participates in the care and treatment of the patient. The relationship must have existed at the time that the malpractice occurred. Typically, proving this is straightforward.
  2. The defendant breached their duty to the plaintiff by deviating from the generally accepted standard of care either accidentally or intentionally. It must be noted that the law does not require providers to be perfect. It only requires that they act within the standard of care expected. Proving breach of duty in medical malpractice cases generally involves establishing the standard of care a “reasonable” person with similar qualifications would provide to a patient under similar circumstances. Negligence is the failure to exercise the degree of care and skill that an average health care provider in the same specialty as the defendant would. Breach of duty can be an action taken or a failure to act when there was a duty to act.
  3. The defendant’s breach of duty caused the plaintiff’s injury. Also called causation, this means that the patient must prove his or her injuries were suffered as a direct or proximate result of the health care provider’s negligence. Simply because the patient had a complication or did not recover as well as hoped does not mean that the health care provider was negligent or that negligence caused the patient’s injuries. Similarly, just showing that another provider would have treated the plaintiff differently will not prove negligence or causation.
  4. The patient suffered a harmful injury which could be physical, financial, psychological and-or otherwise.

The plaintiff in a medical malpractice case has the burden to prove that the defendant health care provider was negligent. If the plaintiff cannot prove that the defendant was negligent, the medical malpractice lawsuit will be dismissed.

Each case is different and there are many factors that can affect the perceived standard of care. When a practitioner makes a choice between different courses of treatment and selects an option that fails, this may not qualify as breach of duty if the practitioner can prove that the option chosen was thought to be the one that would cause the least harm to the patient. If a practitioner simply chooses a procedure, like a rarely used technique, that most doctors would not choose to use, and a respectable minority of other practitioners agree the procedure was justified, then there may be no case for negligence or malpractice. In sum, establishing and proving medical malpractice can often be difficult to prove because poor outcomes are a reality in health care and there may be a multitude of approved ways to diagnose and treat a given patient.

More simply put, a medical malpractice lawyer must prove not only that the harm resulted as a matter of fact from the medical negligence, but that it was reasonably foreseeable that injury would result from the medical error. It is also important to determine if precautions were taken to help eliminate or reduce risk.

The National Center for Biotechnology Information (NCBI) offers a more in-depth discussion of the term “standard of care” from a physician’s standpoint in an article (West J Emerg Med. Feb 2011; 12((1)): 109–112).

In the vast majority of cases, in order to prove that a health care provider’s care fell below the standard of care, the testimony of another healthcare provider, within the same specialty or practice area, will be required to prove 1) the standard of care expected of the negligent health care provider, 2) how the provider violated that standard of care and 3) the injuries and damages that the provider’s negligence caused.

A medical malpractice lawyer needs to find the right medical expert to review the plaintiff’s medical records. The medical expert should be in the same field as the defendant, and in the same sub-specialty, even though the law does not require this. A good lawyer knows that experts will be more credible if they are seen as specialists offering an opinion.

One type of case that can be prosecuted without expert testimony is a case where a surgeon operates on the wrong part of the patient’s body or leaves a surgical clamp inside the patient’s body. Lawyers use a Latin phrase for cases like this: “Res ipsa loquitur.” It translates to “the thing speaks for itself.” The doctrine indicates that there is no need to provide any further detail, because the facts are so obvious. Classic examples of this situation are where a surgeon leaves an instrument inside of a person’s body following an intensive surgery or amputates the wrong body part.


No Fees Unless We Win Your Case

Call (212) 577-9325 for a Free Consultation

  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.