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What Must be Proved in a Medical Malpractice Case?

Every Kentucky medical malpractice lawsuit or medical malpractice case must consist of three elements.

  • The first is Negligence, or a deviation from the required standard of care
  • The second is an Injury
  • The third is called Causation — simply put, the negligence must have caused the injury

These three elements are like a 3-legged stool — no malpractice case can stand without all three.


The question of negligence examines how a reasonable doctor or nurse would have handled a patient with the same or similar symptoms and complaints. There also may be clear cut rules that were violated. For example, if a hospital has a standing order that requires a chest X-ray for every emergency room patient complaining of shortness of breath, and a chest X-ray is not performed, it can be argued that the negligence was the failure to follow an order. The standard of care may also be clear cut based upon the current state of medicine in a particular specialty. For example, if a difficult vaginal delivery may be assisted by using forceps or a vacuum extractor (but not both) and an obstetrician uses both and injury results, the allegation of negligence can be that the doctor failed to meet that standard. Examples are too numerous to list here, but the basic point is that for a Kentucky medical malpractice case to succeed, there must have been a deviation from the required standard of care, or, negligence.


Injury is a simple concept. However, in that medical malpractice lawsuits are vigorously defended in Kentucky, the injury must be significant to justify the risk (both time and money) that will be invested to pursue the case. Wrongful death cases arising from an allegation of negligence are an example of significant injuries. Brain injuries, birth injuries, failure to timely diagnose cancer, etc; often meet the criteria that many Kentucky medical malpractice attorneys establish to justify moving forward with a case. An example of a case that may not meet a certain lawyer's criteria would be a fall in a hospital when a nurse was not tending to a patient in some way that allowed the fall. If the injury is a sprained ankle or a bruised shoulder, those injuries or damages may not justify the time and money necessary to pursue a case alleging negligence against the nurse and/or the hospital. Many potential cases appear to have sufficient negligence, but the damages are minimal. In those cases, a particular medical malpractice lawyer may "pass" on the case. This does not mean the injured patient fails to have a valid claim. On the contrary, another lawyer may evaluate the claim and accept the case because he or she has a different set of criteria when it comes to damages or injury.


Causation is often a battleground in Kentucky medical malpractice cases. Patients tend to be ill when they are seeking medical attention. Sometimes it is difficult to determine if a problem is the result of negligence or the patient's underlying medical problem. Patients also can have medical histories and/or medical conditions that relate to the injury and are not the result of negligence. For example, diabetes can contribute to or cause many problems. Circulation issues can be part of many complications. Reduced blood flow can cause (or can be blamed for) many less than optimal results. In many potential medical malpractice cases complex medical histories and preexisting medical conditions make success a challenge (or, sometimes, an impossibility). It is also important to understand that not every negative outcome or medical failure is the result a doctor's or nurse's negligence. Several complications are deemed, "known complications", meaning that the result is an accepted risk of the procedure. An example might include the perforation (creation of a hole) in the bladder or ureter during a hysterectomy. Certain bile leaks after gall bladder removal are deemed to be known complications of the surgery. Another example to help explain the challenge of proving causation can be seen in the case involving a failure to timely diagnose, say, lung cancer. If a chest X-ray reveals a concerning spot on the patient's lung and it is not recognized by the radiologist, yet another study (another X-ray, C-T scan, biopsy, etc) finds the cancer within a very short time, it is difficult to prove that the delay is what caused the damages rather than the cancer itself.

Expert witnesses and treating doctors are used to assist the patient and the medical malpractice attorney in proving these three elements. Doctors and nurses educate jurors (and medical malpractice defense attorneys and medical malpractice insurance companies) about the standard of care and what a reasonable doctor or nurse when faced with similar circumstances would have done. Once a deviation from this required standard of care is established—negligence has been established. Expert witnesses and treating doctors also help prove causation. Doctors can help jurors, attorneys and insurance adjusters understand the results of the defendant doctor's failures or the doctor's delay, etc. Damages, or the injuries, are proven by a combination of doctors, the patient and the patient's loved ones. Doctors help by explaining the treatment, recovery and prognosis (medical future). Doctors can also comment on pain and suffering and restrictions. The patient and loved ones tend to put a personal touch on the damages/injuries. For example, if a doctor's negligence caused an injury that precluded the patient from ever gardening again (or ever speaking again or walking) it is important for jurors to understand the impact the negligence had on the lives of the patient and his/her loved ones from both doctors and the patient and loved ones.

If you believe your allegation meets all three of these criteria, you are welcome and encouraged to contact or call Kentucky medical malpractice lawyer Brett H. Oppenheimer, PLLC. Brett will answer your questions and determine if he and his team can help. Brett's toll free number is (866) 935-5729. His office number is (502) 749-5700.

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Attorney Brett H. Oppenheimer explains the purpose of the phone call blog. He believes it is an opportunity to share some of the stories and inquiries that come to him by email and telephone so you can learn about the types of cases he and his staff consider. The phone call blog is a compilation of stories that come to him from people just like you. To learn more about the phone call blog, please view this short video.

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