Why It's Hard to Prove Medical Malpractice

A landmark medical malpractice case occurred at a Florida hospital in 1995 when a patient whose diseased foot was to be amputated woke up from surgery only to discover the healthy one had been amputated instead. The medical mistake made national news and was the impetus for operating room reforms across the country as hospitals implemented protocols designed to prevent such a medical malpractice event from happening again.

Amputating the wrong limb is a dramatic example of a surgical error that constitutes malpractice. Hospitals and surgeons generally do not even try to defend such actions. They settle these types of malpractice suits without the case even needing to go to trial. This is not the case with all medical malpractice cases which are generally very difficult to prove.

Elements You Must Prove to Win Your Medical Malpractice Case

There are four legal elements you must prove to win your medical malpractice case in Florida.

1. You had a provider/patient relationship with the health care professional you claim was negligent.

This is generally the easiest element to prove. The opposing side rarely challenges this element.

The prover/patient relationship extends to everyone who provided you with professional medical care. It includes the healthcare providers who agreed to treat you, the nurses and aides in a hospital who took care of you, and the hospital. It does not include your physician friend who you chatted with about your medical problems when you both attended a garden party. 

2. The medical professional treatment was negligent in that it fell below the acceptable standard of care of other healthcare practitioners in the same field of practice in the same geographical area.

Florida law establishes that a “claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

This is often a difficult element to prove. It requires expert testimony by a healthcare professional in the same field of practice who will testify that the standard of care was below that of the generally accepted practice in the community. It may be difficult to find an expert since healthcare practitioners are often hesitant to criticize the care of their colleagues and peers even when it may be clear the care provided was substandard.

The opposing side can almost always find their own expert witness who will testify the standard of care provided was within the acceptable standard in the community. The trial becomes a battling ground between experts and the jurors generally decide the case based on which witnesses they find to be the most credible.

At The Ferraro Law Firm, we choose experts who are highly skilled in their specialty and respected in the community. Their credibility is impeccable and difficult, if not impossible, for the opposing side to attack.

3. Substandard care is what caused you harm.


The law requires you to prove within a reasonable degree of certainty that the substandard care was the cause of the harm you suffered. This is not an easy task even after you prove the care provided was below the acceptable standard of care.

There are risks and complications that occur with any surgical procedure or medical treatment. When prescribed medications, there are always risks and side effects that you are warned about.

Surgery performed on a broken bone may not always result in a positive outcome even when the standard of care is met. Claims that a bad outcome occurred because the surgeon was negligent by, for example, using the wrong metal when operating to set the bone, or opting for casting the broken bone instead of performing surgery, are not easy to prove.

The opposing side will argue that any bad result could have occurred despite a below standard of care so even if there was substandard care, that is not the cause of the bad outcome. At The Ferraro Law Firm, our personal injury attorneys are skilled at showing that the negative outcome is the result of the care being below the standard of care in the community. 

4. You suffered damages because of the substandard care that was provided.

This is also a difficult element to prove. In another Florida case, a veteran who suffered from back pain for many years was diagnosed with osteoarthritis and treated with pain medications. Several years after treatment first began, it was discovered that the man had stage 4 renal cancer which had metastasized to his bones. He alleged that it was the delay in diagnosing cancer that was the cause of his pain.

The difficulty came with proving that the delayed diagnosis was the cause of the pain and suffering and other damages the patient experienced. The burden of proof is on the plaintiff, the patient, to prove that an earlier diagnosis would have had a different outcome. 

Although the defense will argue that the substandard care is not the cause of the plaintiff’s damages, our experts at The Ferraro Law Firm are adept at showing how a delayed diagnosis due to substandard care results in actual damages to the plaintiff.

Proof of All Elements Requires Comprehensive Review of Medical Records

In order to prove the care provided to you was substandard, that the substandard care caused you harm, and you indeed suffered damages, an expert must do a comprehensive review of your medical records. The medical expert must be prepared to answer questions from the malpractice attorney for the healthcare professional you claim was negligent.

Finding evidence of malpractice is a  meticulous process that includes determining if laboratory tests were not done that should have been done. The research will also include exploring if the treatment given was harmful instead of helpful? Was treatment not given that should have been given? Was medication prescribed that should not have been given or not prescribed that should have been given?

If unnecessary treatment was given, was it the cause of the harm? If necessary treatment was delayed, was that the cause of the harm, or would earlier treatment not have made a difference in the outcome?

Did you have pre-existing conditions that made your condition worse which had nothing to do with the substandard care?

How The Ferraro Law Firm Can Help

Florida has specific laws that apply to medical malpractice litigation that are different from those that apply to personal injury cases. Our attorneys at The Ferraro Law Firm are ready to help you with your medical malpractice claim. We work diligently to gather the evidence and retain the necessary experts to prove your case.

We provide you with the guidance and direction you need to ensure your case is handled professionally so that you receive the compensation and punitive damages you deserve. Contact us to schedule a free consultation and learn more about how we may be able to help you. You do not pay us for our services unless we win your case. You may also call (888) 554-2030.

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