Posted by Richard Shallcross

Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:
• The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship)
• The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the duty owed to the patient
• A causal connection between the health care professional’s deviation from the standard of care and the patient’s injury
• Injury or harm to the patient
One of the most important aspects of a medical malpractice action is establishing the standard of care to be applied to the health care professional. To find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, the plaintiff must present expert testimony not only as to the standard of care applicable, but that also establishes that the defendant failed to meet the standard. In cases where the defendant’s violation of a standard of medical care is so apparent as to be comprehensible to the average person, expert testimony may not be required.
Another element of medical malpractice actions, causation, is sometimes difficult to establish. Specifically, the plaintiff must show that his or her health care provider’s deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes there may be other factors that contributed to the plaintiff’s eventual injury.
Informed consent
In many situations, the failure to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must inform the patient of all potential benefits, risks and alternatives involved in any surgical procedure, medical procedure or other course of treatment, and must obtain the patient’s consent to proceed.
Breach of contract or warranty
Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure and the physician had guaranteed or warranted a certain

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