Determining negligence is the heart of a cancer misdiagnosis lawsuit. To win a lawsuit, the individual filing the lawsuit (plaintiff) must prove that he or she suffered harm as a result of the negligence of the medical professional being sued (defendant). Determining negligence is accomplished by proving that the defendant failed to provide the same level of care that is reasonably expected in similar circumstances. Determining negligence as the cause of the plaintiff’s harm can also be difficult, as the plaintiff may have already been ill at the time the negligence occurred.
What Is Negligence?
Negligence is defined as carelessness or a lack of reasonable care and skill toward treating the patient. In a cancer misdiagnosis lawsuit or any other medical negligence lawsuit, it is important to understand that not all poor outcomes are the result of negligence. Poor outcomes may still result when a medical professional provides the highest possible level of care. This is especially true when attempting to diagnose and treat cancer, due to cancer’s often complex and misunderstood nature.
A medical professional acts negligently when he or she fails to seize a medical opportunity that may have resulted in a better outcome for the patient. This can occur through lack of attention or blatant disregard for proper medical procedures. For example, negligence can be seen when a doctor identifies a breast lump during a physical examination, but fails to order a mammogram or biopsy to check for cancer.
In a medical negligence lawsuit, the plaintiff holds the burden of proof. Burden of proof is a legal term noting that it is the plaintiff’s responsibility to provide sufficient evidence of all claims made in the lawsuit. If the court is unconvinced by the plaintiff’s presentation of evidence, the plaintiff will not win the case and therefore will not collect financial compensation for damages.
Determining negligence in a cancer misdiagnosis lawsuit requires the plaintiff to prove:
- The existence of a doctor-patient relationship or similar legal agreement between the plaintiff and defendant. This relationship establishes that the doctor has a duty to provide the patient with a certain level of care, or the standard of care.
- The doctor was negligent. Through these negligent actions, the doctor committed a breach of duty by failing to meet the standard of care.
- The negligence of the doctor caused the plaintiff’s injury. In turn, the plaintiff’s injury led to the specific damages that the plaintiff listed as grounds for the lawsuit. Damages may include medical bills, lost wages, loss of quality of life, and pain and suffering, among others.
Preponderance of Evidence
Due to the fact that there is no clear-cut method of determining negligence, the plaintiff’s ability to prove a claim is based on a preponderance of evidence. Preponderance of evidence is a legal term discussing the likelihood that a legal claim is true based on the plaintiff’s evidence. To win a medical negligence case, the plaintiff must provide sufficient evidence to convince that court that the plaintiff’s harm was “more likely than not” caused by the defendant’s negligence.
Standard of Care
To determine negligence, evidence must show that the defendant failed to treat the patient according to the industry’s standard of care. The standard of care is defined as the level of care that would be reasonably exercised by any medical professional of similar expertise, knowledge, and qualifications. The standard of care in a particular medical field outlines the appropriate and acceptable care, treatment, and skill level offered by a medical professional. The state in which the lawsuit takes place will have laws to determine if the standard of care is based on local or national standards.
Expert testimony is typically required to support a plaintiff’s medical negligence claim, or to support the defendant. Expert testimony often involves a medical professional with similar experience and expertise to the defendant. During an expert testimony, the expert will discuss his or her medical opinions and experience regarding the plaintiff’s condition and legal claims. The expert will also discuss the industry’s standard of care. The court uses the expert’s testimony in determining negligence and whether or not the defendant failed to meet the standard of care that the patient was entitled to.
“Actionable wrong diagnosis and ‘Gross Medical Negligence’.” Medical Law Cases – for Doctors 4.12 (2011): 183.Academic OneFile. Web. 8 Nov. 2013.
Blake, David R. “Alternative Prescribing and Negligence.” British Medical Journal 326.7386 (2003): 455. ProQuest. Web. 8 Nov. 2013.
Dyer, Clare. “Overhaul of Medical Negligence Litigation Announced.” British Medical Journal 313.7052 (1996): 247. ProQuest. Web. 21 Nov. 2013.
Tibballs, James. “Loss of Chance: A New Development in Medical Negligence Law.” Medical Journal of Australia 187.4 (2007): 233-5. ProQuest. Web. 21 Nov. 2013.