Medical malpractice occurs whenever a medical professional deviates from the accepted standard of care for his or her field of medicine. All medical professionals and health care providers have an ethical and legal obligation to give every patient responsible and safe treatment and care. Medical malpractice often results in death or severe injuries that can leave a patient debilitated for life. It is also one of the leading causes of wrongful death in New Hampshire.

Types of Medical Malpractice

Despite the best efforts of modern medicine, bad results sometimes happen after medical intervention that is simply no one’s fault. Not all patients respond to treatment, some diseases or conditions evade diagnosis, and many surgeries have unavoidable risks. Yet, there are many instances when a bad outcome is the result of medical malpractice. Some examples of the most common forms of medical malpractice in New Hampshire include:

• misdiagnosing or failing to diagnose a serious disease or illness
• delayed diagnosis and treatment
• prescribing the wrong medication or the wrong dosage
• failure to provide appropriate follow-up care
• misinterpretation of lab results (or lab mistakes)
• failure to order necessary tests
• surgical errors (such as performance of unnecessary surgery due to misdiagnoses or an improperly performed procedure)
• anesthesia errors (such as incorrect dosages, incorrect timing, failing to gather sufficient pre-operative information, failing to adequately monitor a patient, etc.)
• birth injuries caused by improper or inadequate management of labor and delivery

What must be proven in a Medical Malpractice Lawsuit?

The injured party in a medical malpractice case must prove the following things (elements) in order to win:

• That the medical professional was responsible for your care and acted negligently. You must prove that the doctor or health care provider failed to meet the accepted standard of care in his or her field of medicine. In other words, the medical professional made a mistake that a reasonable and careful doctor would not have made under the same or similar circumstances. This usually requires the use of an expert witness to testify concerning the mistake.
• That the medical professional’s mistake caused the injury. It must be shown that if the doctor had not made the mistake, the injury would not have happened or would not have been as severe. Expert witness testimony is also used to establish this element.
• That the injured party suffered damages. Damage can include any resulting injury or death from the health care provider’s negligence. It may also include such things as lost wages, diminished earning capacity, medical bills, future medical expenses, lost enjoyment of life, pain and suffering, and the loss of a loved one.

Winning a Medical Malpractice Lawsuit

As in all other civil lawsuits, the plaintiff in a medical malpractice case has the burden of proof. Fortunately, unlike the burden of proof in a criminal case where the prosecutor must prove all the elements of the State’s case beyond a reasonable doubt, in a medical malpractice case, the plaintiff (the injured party) need only prove each element of his or her case by a preponderance of the evidence. This means that in a medical malpractice case, the plaintiff must prove each element of the case by a greater weight of evidence than the evidence in favor of the defendant. But at the end of the day if the jury does not clearly understand why the plaintiff’s case is more compelling, the plaintiff loses. And here is where the essence of my job comes in. In order to make the complicated case completely understandable to a jury and to effectively cross examine the defendant and his or her expert witnesses, I MUST thoroughly understand the principles of medicine involved in the case. This usually involves hours of reading medical texts and journals and conferring with our expert witnesses. Last but not least, the plaintiff’s expert witnesses will say one thing, while the defendant’s expert witnesses will say another, and the jury is at a loss to know who to believe. To tip the scale, the strongest move for the plaintiff’s lawyer to make is to find reputable medical texts or journals to confront and contradict the defense. The written word in a respected text or journal often saves the day.