Medical malpractice occurs when a medical professional fails to provide the care another medical professional would in similar or the same circumstances. Care that does not meet expectations set by the applicable state law and local medical community is called substandard care. A defendant sued by a patient for medical malpractice has a number of defenses available to them.
Rejecting the testimony of an expert is a defense used to disqualify expert witnesses. A judge is responsible during trial is to act as a gatekeeper to ensure expert witnesses testifying have:
Thus, a defendant can challenge both the expert’s qualifications and the testimony that they plan to give during the trial. If the defendant wins the challenge, the expert cannot testify.
A plaintiff must successfully prove each element of a medical malpractice case. These elements are:
If the plaintiff fails to prove any one of these elements, they cannot win their lawsuit. The most commonly challenged element is causation, which a defendant can challenge by showing that they did not cause the harm that the plaintiff suffered.
Contributory negligence looks at the negligent acts of the plaintiff. If the plaintiff contributed to their injury, they are barred from receiving any compensation for their injury.
Comparative negligence also looks at the negligent acts of the plaintiff. This defense compares the negligence of the plaintiff to the negligence of the defendant. The plaintiff’s award is reduced by their percentage of fault for their own injury. For example, if a patient was found to be 40 percent negligent in their medical malpractice injury, their damages award would be reduced by 40 percent.
Yes, talking to a personal injury attorney about a medical malpractice defenses is helpful when you are a defendant. An attorney will advise you of your legal rights and determine which defenses are available to you.
Last Modified: 07-29-2015 02:07 PM PDTLaw Library Disclaimer
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