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The late U.S. Supreme Court Justice Potter Stewart once said that he couldn’t define pornography but “knew it when he saw it”. Lots of folks believe the same principle applies to medical malpractice. They think that every bad treatment outcome means the doctor, hospital or other health care provider made an error and should be held responsible.

In reality, however, regardless of the jurisdiction in which the alleged error occurred, to make out a viable claim of medical malpractice an injured patient (or his survivors) must prove four essential elements by a preponderance of the evidence presented (that is, the weight of the evidence is >50% in favor). State laws and court rules related to malpractice claims vary widely, but boiled down to its essential elements a successful medical malpractice claim must always answer “yes” to four questions:

  • Did the provider have a duty to be competent in treating the patient?
  • If so, did the provider fail to observe that duty?
  • If so, did the breach of duty cause the patient’s injuries?
  • Finally, did the patient in fact suffer a serious injury?

Let’s look at each of these essential elements in more detail:

Duty of Care

This element is pretty straightforward: a health care provider (this includes not only doctors but also nurses, physician assistants, hospitals, chiropractors, etc.) owes every patient a duty of care. This sounds simple: the provider must observe established standards when providing treatment. In fact, establishing what the standard of care is for a particular treatment typically requires expert testimony from another practitioner in the same specialty (and yes, general or family practice is a specialty).


Although in some egregious cases a health care provider may commit a deliberate breach of care, nearly all claims involve unintentional acts (that is, mistakes). If the treatment falls below the relevant standard of care, the provider is said to have been negligent. As such, not every mistake constitutes negligence.

As a means of deterring malpractice suits considered frivolous, Pennsylvania law requires the patient secure an expert opinion that the defendant provider was indeed negligent before filing suit.


The third element of a medical malpractice claim is one of cause and effect; was the provider’s negligence a direct cause of the patient’s injuries? If so, the cause is said to be “proximate”. Errors that aggravate an existing condition may also allow the patient to recover damages if the other three elements are satisfied. However, a mistake that doesn’t cause any injury is a “no harm = no foul” situation, even if the provider was in fact negligent.

Serious Injury

The final element of a medical malpractice claim is injury – did the patient suffer serious physical harm? Obviously, a suit by a deceased patient’s survivors qualifies, but in non-fatal cases the harm must be actual and provable through medical records and expert testimony. Generally, there are three types of damages that a patient injured by a provider’s negligence may seek:

  • Economic Damages. Sometimes called “special” damages, these are provable out-of-pocket monetary losses, such as lost wages, uninsured medical bills or the cost of necessary household help.
  • Non-Economic Damages. These (also known as “general” damages) are non-monetary in nature. Pain and suffering or a spouse’s loss of companionship and help (called “loss of consortium”) are examples.
  • Punitive Damages. In rare cases in which the provider’s conduct falls far below the relevant standard of care, a jury may award these damages. As the name suggests, they are intended to punish the provider, but they also deter misconduct by others in the future.

The elements of a medical malpractice lawsuit are easy to define.  But determining whether a given set of circumstances meets the elements for a medical malpractice lawsuit requires a detailed investigation.  If you question whether you or somebody close to you was seriously injured by medical negligence, let an experienced medical malpractice law firm like Lupetin & Unatin find out if you have a case. We invite you to contact us for a free case evaluation.

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