Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice. Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals. She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex. Question: What is medical malpractice? Susan: Medical malpractice is a cause of action for damages against a health professional or a hospital, and the vast majority of medical malpractice litigation is grounded in negligence. The elements of a negligence case for medical malpractice are the same as the elements for any other type of negligence action. In medical malpractice, the plaintiff or the patient must prove that the doctor owed him a duty and that the doctor failed to exercise the skill or care of a reasonable doctor or breached the duty and that damages were proximately caused by the breach of that reasonable standard. The primary difference between a medical malpractice action and another negligence action is that an expert usually must testify to establish liability and proximate cause in the medical malpractice context. So in a medical malpractice case, the plaintiff’s attorney will need to hire an expert who is a physician like the defendant doctor to review records and to determine if malpractice has occurred. If malpractice is found, that expert physician must testify that the defendant doctor committed malpractice and that the malpractice caused the plaintiff’s injury. Question: What do I need to prove to be successful in a medical malpractice case? Susan: To prevail in a medical malpractice case against a physician, the plaintiff or patient must prove four distinct elements: Duty, a breach of a duty, proximate cause and damages. And if any of those essential elements is missing, the plaintiff will not prevail. It’s the plaintiff who has the burden of proof in these cases. I can address each one of the elements separately. Duty actually refers to the legal relationship between the plaintiff and defendant. In a medical malpractice case, the duty requires that the healthcare provider delivers healthcare in accordance with the standard of care. So a relationship must exist before the duty arises. Thus, in a medical negligence situation, a doctor/patient relationship must be established before this duty arises. Once there is that physician/patient relationship, the defendant doctor becomes legally accountable for his or her actions. Now, you may ask what is the level of conduct to which a healthcare provider is held or what is the standard of care? A doctor is required to possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified physician in the same or similar circumstances. It’s a standard of reasonableness. And a plaintiff or patient must introduce evidence at trial to demonstrate the standard of care. And how do you introduce this evidence? This is where that expert witness comes in. You need to hire an expert witness to review the case and then that witness must come in at trial and testify as to the standard of care and that it has been breached. The expert must have qualifications and expertise very similar to that defendant doctor. The expert testifies about the standard of care at trial and the expert also testifies that the defendant’s conduct fell below that standard of care. Now, you can establish standard of care not only with an expert witness but you can look to other sources as to what is reasonable conduct by a physician. Sometimes documents are used to help define the standard of care. For example there might be practice bulletins or guidelines that are published by professional medical organizations that may help define the standard of care. In a case against a hospital, you can look the hospital’s policies and procedures. Obviously, they should reflect the standard of care. You can look to medical text books or articles as to what is reasonable conduct for a doctor in a given situation. And sometimes, there are statutes that actually define the standard of care. For example in Illinois, there is a duty after a baby is born to instill eye drops in the eye to prevent a certain eye disease. So that is a practice or standard that is dictated by law. So you can try and define standard of care in all of these different ways but the most common way is with an expert witness. The second element is breach of duty. Once the expert establishes the standard of care, the plaintiff must also show that there has been a breach in that duty. And a breach of that duty can either be an act or an omission. And it must be a foreseeable breach. Expert testimony, policies and procedures and all of the other things that we discussed can show a breach in the standard of care. Another important element is proximate cause or causation. There must be a direct relationship between an alleged negligence and the plaintiff’s injuries. As a direct and proximate result of the acts or omissions of the defendant, the plaintiff must have sustained an injury. The defendant will be found liable for injuries to the plaintiff because the defendant performed negligently, and there has to be that causal connection. Causation is also proved by expert testimony and this may be a difficult element for a plaintiff to prove in a medical negligence case because there may be other explanations for the patient’s injury. Many times in these cases, proximate cause is the big defense. A defense attorney will argue that nothing the doctor did or did not do caused the patient’s injury — it just happened, it would have happened anyway. So proximate cause is a big defense. At Clifford Law Offices, I work on a number of cases that involve babies. Cases where babies have been injured as a result in the delay of performing a C-Sections or an improper delivery. And in these cases, proximate cause is always the big defense. For example, the defense attorney will say that the brain damage may be due to a problem with the placenta or the brain damage in the baby may be do to some genetic problem or an infection during the pregnancy with the mom or the baby in utero. So proximate cause is a very important element and it is a way that a medical malpractice case is defended. And the final element is damages. The plaintiff must prove that they have sustained an injury or damage. And in Illinois damages fall into basic categories. The first category is economic damage and the second is non-economic damage. Some of the elements that a plaintiff may be compensated for include past and future medical care costs, lost earnings, past and future pain and suffering, past and future disability, disfigurement. So an example of an economic damage would be lost wages or past medical bills. And example of a non-economic damage would be pain and suffering. One distinction in Illinois that is kind of unique to medical malpractice cases is that you cannot sue for punitive damages. Often you hear in product liability cases where a manufacturer or company can be sued for punitive damages. That is not an element that is recoverable in Illinois in medical malpractice cases.