Cohen and Cohen, P.C. attorneys are frequently asked the question, “Do I have a case?” The answer, unfortunately, is not always a simple one. Injury cases typically have three elements: a mistake, an injury, and proof that the mistake caused the injury. The analysis can be most clearly illustrated by examining a medical malpractice or product defect case.
In order to evaluate a medical malpractice case, the first item to address is whether the physician, nurse, or health care provider did something improper. In order to prove this fact, the law – in most states – requires that the injured victim introduce evidence from another similar person (i.e., physician, nurse, or health care provider) to testify that there was a mistake made. This is often called establishing that there was a violation of the “standard of care.” There are, of course, some exceptions to the rule. Proving this violation is often viewed as the most difficult part of a malpractice case.
Next, it is imperative to prove that there was an injury as a result of the violation. Although this is sometimes the least difficult element of proof, it maybe sometimes difficult to prove nonetheless. Take the situation where a health care provider fails to advise the patient of the risks of a certain procedure. The health care provider may have violated the “standard of care,” but if nothing actually went wrong during the procedure, then there is no case. Similarly, the situation may arise where a health care provider orders an improper medication for a patient, but the medication mix-up is harmless. Again, there may be a clear violation of the standard of care, but no damages.
Finally, the injured person must prove that her injury was caused by the mistake. This is where claims may get tricky. The injured victim must prove that the particular violation of the “standard of care” caused the victim’s injury. In certain cases the connection may be simple. For example, a basic case might arise in a situation in which a physician leaves a sponge in a patient during surgery, and that patient subsequently develops an infection. By contrast, a more complex matter might involve proving whether a birth injury is necessarily related to a physician’s failure to perform a timely c-section. Did the delay in performing the c-section cause the birth injury? Or was the birth injury caused by genetic factors long before the delivery?
Determining whether a client has a case is a complex matter. You should review your case with a competent lawyer from Cohen and Cohen, and let Cohen & Cohen make the decision as to whether you have a case!