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Medical Negligence and the Need for Specialized Advocacy at Trial

Posted Monday, December 3, 2018 by Morgan Cartwright

Medical negligence law requires attorneys with the expertise of this area of the law in order to overcome the specific obstacles and challenges that these cases face if they go to trial. One of the most important words in the law of medical malpractice is the word “negligence”.

When you ask individuals to define the term, their definitions and understanding may be far different from the real legal applicable standard. This means that lawyers representing injured claimants have the challenging task of convincing members of society what negligence is in medicine.

Negligence is defined generally as the “failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.” There are two major obstacles that must be overcome with this definition and how it is preconceived in our society.

First, there is a major difference between medical negligence and general negligence. I’ve asked people to tell me what they think “negligence” means and they often refer to doing something consciously, knowingly, or intentionally.

For example, negligent driving is when someone is driving in a manner that’s dangerous. Oftentimes this is due to some conscious, intentional choice made by the driver. However, medical negligence does not mean intentional. This difference creates a very tough hurdle for medical malpractice claimants because it requires lawyers to change some juror’s preconceived notions that negligence equates to a willful or intentional act.

Second, medical negligence creates a special dilemma because the “reasonable person” is actually a “reasonable doctor”. When a lawyer faces a jury of twelve with no medical professionals, few will know what is required of a reasonable doctor.

Expert witnesses tell the jury about the “standard of care”, which is what a reasonable doctor in the same circumstances would do.

The defendant will present doctors who tell the jury that the defendant met or exceeded the standard of care, while the claimant will present doctors who tell the jury the defendant’s actions fell below the standard of care. This presents a difficult hurdle for the claimant’s attorney, since the claimant has the burden of proof. If he or she cannot convince the jury the plaintiff’s side is right, the plaintiff will lose.

Definition of Negligence

Definition of Medical Negligence in Washington State

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