The vast majority of people who call my office looking for legal help are not familiar with the legal system. They’ve likely never spoken with a lawyer before, and know very little about the justice system within which medical malpractice claims are handled.
What they do know is that something really bad has happened to them or to one of their loved ones, they believe it was caused by medical care, and they don’t know what else to do.
As a medical malpractice lawyer, it’s my job, at least initially, to determine whether or not the claim sounds like one that merits looking into. One of the ways I do that is by listening to the story and trying to determine whether I could help them “prove” the essential elements of their case: namely that a health care provider was negligent (the official term for the more commonly used “malpractice”), and that the negligence caused the harm the person is upset about.
The reason why proof is so important, is that the injured person on the phone would be the plaintiff in a lawsuit, and the plaintiff has the burden of proof: he or she must provide the jury with enough evidence to win.
In criminal contexts, the burden of proof is on the state to convince the jury beyond a reasonable doubt that the defendant is guilty. Most of us have heard that phrase before.
A medical malpractice claim is different. It is a type of civil case in which one side is bringing a lawsuit against the other, typically for money damages to make up for the harm caused. Other civil cases include car crashes, or many employment disputes. In a civil case, the burden of proof
is different: in Washington State it is called a “preponderance of the evidence.”
What??? Who uses “preponderance” in a sentence these days? Right. No one.
Still, that’s the standard. What it means is that the plaintiff has the burden to persuade the jury that she is more likely than not right about the essential elements of her claim (whether the doctor committed malpractice, what it caused, etc.).
Obviously, “more likely than not” is an easier standard than “beyond a reasonable doubt”.
What is a “preponderance”?
There is little written on where “preponderance” comes from, but I did come across this excellent journal article on the subject.
Mr. Leubsdorf’s article is a great resource for tracing back where this burden of proof came from.
You’ve likely seen pictures or a statute of “Lady Justice” before (latin: lustitia):
As Wikipedia describes, Lady Justice “is an allegorical personification of the moral force in judicial systems.” As an aside, the blindfold commonly seen on Lady Justice came about in the 16th century, and represents impartiality: “justice should be applied without regard to wealth, power, or other status.”
More practically, the scales of justice represent weighing the relative strengths of each side’s case. This concept of weighing the evidence dates back to at least the Romans and perhaps even further. These scales in many ways embody the “preponderance standard”: put all of the evidence weighing in favor of the plaintiff on a particular issue on one side (like whether the radiologist missing the tumor on the CT scan caused the plaintiff’s cancer to become incurable), and all the evidence weighing in favor of the defendant on the other. If the scales tip, even slightly, toward the plaintiff, she wins on that issue.
However, this standard wasn’t articulated until (per Mr. Leubsdorf) 1768 in England. In the United States, it didn’t become more common place until the middle of the 19th century. It was only toward the end of that century that more and more court decisions were considering the preponderance standard.
It is unclear why this burden of proof was not readily accepted earlier, but it seemed to coincide with courts making clear the burden of proof in criminal cases was beyond a reasonable doubt (thereby needing another standard to apply to non-criminal matters).
So, to summarize, people tasked with deciding disputes have for centuries used the concept of weighing each side’s evidence to come to a result. These scales of justice neatly coincide with the current concept of the “preponderance of the evidence” used in medical malpractice litigation today. I just wish we’d come up with a better word than “preponderance”.
