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What Must Be Proven Against You?
In order to win a verdict of malpractice, the plaintiff's attorney must persuade the jury (or in
some cases, the judge) of:
- Negligence
- Proximate Cause
- Injury
Negligence
In most cases, plaintiff's counsel must prove that you, the defendant, "failed to exercise that
degree of care, skill and learning expected of a reasonably prudent health care provider in the
profession or class to which he belongs within the state, acting in the same or similar
circumstances."
Ordinarily, the sole basis for the jury's decision must be testimony given by physicians called as
expert witnesses. In theory, this allows the jury to judge you according to the standards of your
own profession. In practice, it requires them to choose between the standard espoused by you and
your expert and those by the plaintiff's expert.
Proximate Cause
Plaintiff's counsel must demonstrate that your negligence was the legal cause (or proximate cause)
of the injury. The plaintiff's attorney need only persuade the jury that your actions or failures
were one cause of the injury, not necessarily the sole cause or even the most immediate cause.
Injury
Finally, it must be proven that the plaintiff was injured, physically or emotionally. It may be
claimed that the injury was economic in nature (i.e., that it resulted in lost wages or reduced
earning power). It may be claimed that the plaintiff sustained a non-economic injury such as pain
and suffering or loss of best chance of recovery. The latter is commonly associated with claims
of delayed diagnosis or treatment. Another type of non-economic injury is "loss of
consortium" by a spouse, i.e. loss of companionship and services.
A plaintiff may ask for economic and non-economic damages.
Jurisdiction
A malpractice lawsuit is a civil, as distinct from a criminal, proceeding. It is adjudicated -
heard and resolved - in a civil court and governed by substantive and procedural laws.
One of two court systems may have jurisdiction over your case: state court or federal court. Here
is how jurisdiction may be determined:
State Courts
A malpractice suit against you is most likely to be filed in the state court of the county where
you practice or live. If any part of the treatment or transaction took place in a different
county, the suit may be filed there.
Other venues are possible in cases with more than one defendant. If the co-defendants are solo
practitioners, a suit may be filed in the home county of any one of the practitioners. If they
are partners, the jurisdiction can belong to any county containing a partnership office or a
hospital at which one or more of the partners practice.
Given a choice, the plaintiff's attorney will usually file suit where it is most convenient or
where the attorney thinks there is the best chance to win or to obtain the highest damage award.
Out-of-State Courts
You can be sued in another state if you:
- treated the plaintiff there;
- regularly practice there;
- live in that state;
- maintain an office within that state; or,
- solicit patients from that state.
You must be represented by an attorney licensed to practice in the state in which a suit is filed.
Federal Courts
A malpractice case may be heard in a federal court if:
- the plaintiff is a citizen of one state and no defendant is a citizen of the same
state; or,
- if a defendant is not a U.S. citizen and none of the co-defendants are citizens of the
state in which the defendant practices.
Even if heard by a federal court, a case will be tried according to state substantive law.
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