Burden of Proof
In a medical negligence or other personal injury case, the Plaintiff has the "burden of proof". This means that it is up to the Plaintiff (or the injured person) to prove that the defendant was negligent. Unlike a criminal case, where the prosecution must prove the case "beyond a reasonable doubt", in a civil case, the Plaintiff must prove the case only on a "balance of probabilities". This means that the Plaintiff has to prove the case using a "more likely than not" test.
Standard of Care
The Plaintiff (injured person) must prove that the healthcare provider (defendant) failed to meet the "standard of care" for the specialty or profession to which he or she belongs. The standard that the courts apply is that of a reasonably careful or prudent healthcare provider acting in the same or similar circumstances.
Medical negligence cases, other than in exceptional circumstances, can only be proved through the testimony of an expert witness who practices in the same field of medicine as the defendant. For example, if the care in question was provided by an Emergency Room physician, we will generally need to hire an expert who is an Emergency Room physician to provide an opinion as to whether the care provided was outside the applicable standard of care.
In addition to proving that the care was negligent, the Plaintiff must also prove, on a more likely than not basis, that the negligent care caused the harm complained of. This is known as causation. There are some situations where the care provided was negligent but it did not cause the harm.
We will evaluate the causation aspects of your case with the assistance of experts in relevant medical fields.
We will only recommend that you proceed with a case if we believe that we can prove both negligence and causation..
A Plaintiff has to prove that he or she has suffered damage caused by the defendant's negligent care.
If damage can be proved, there are two types of "compensation" that a Plaintiff may be entitled to claim. The first is known as "special damages" and these are the expenses or economic losses that result from the negligent care. Such expenses will often include medical expenses, lost wages and, in cases involving more serious injury, the cost of ongoing care, assistance around the home, adaptations to the home and specialist therapies.
The second type of compensation is known as "general damages". This is compensation for the Plaintiff's pain and suffering, disability, emotional suffering and loss of enjoyment of life.
If the injured person was married, their spouse may also have a claim for the losses they have suffered. This is known as a "loss of consortium"claim.
We will work with you and with experts to evaluate your damages claims.