Medical malpractice claims and negligence: What you need to know.

Victims of medical malpractice often build their legal claim on the theory of negligence. Negligence, in its most basic form, involves the accusation that someone did not take proper care while doing something. In a medical malpractice claim, the victim takes it a step further, stating that the failure to act with care resulted in a serious injury or death.

When it comes to determining negligence, the legal world has a much more complex definition of the term. Two of the more common examples that can come to play in a medical malpractice case include vicarious negligence and gross negligence.

Option #1: Vicarious negligence. This form negligence is used when another is responsible for the actions of the individual that caused the injury.

In medical malpractice cases, this could extend to include the hospital or health care facility. In some situations, the victim can establish the facility failed to use proper protocol when hiring the medical professional and is partly responsible for the injury.

Option #2: Gross negligence. A victim may use this legal theory of negligence when the person who caused the injury either knew of potential consequences or was intentionally negligent.

To establish gross negligence, the victim often needs to show these four elements: (1) the accused owed the victim a duty, (2) the accused failed to perform the duty, (3) the victim suffered injury or harm, (4) the victim’s injury or harm was the result of the accused’s failure to perform the duty. The court generally accepts the presence of a patient/doctor relationship to establish the first element. To further build this claim, the court generally requires the victim gather evidence and expert testimony to establish the remaining elements.

Option #3: A combination. In many med mal cases, the victim may be able to establish a combination of gross negligence and vicarious negligence resulted in the injury.