Proving Medical Malpractice Overview

how to prove medical malpractice

In need of an Athens medical malpractice lawyer? Call Blasingame, Burch, Garrard & Ashley, P.C. today for a free case evaluation: 706-354-4000

Every year, millions of Americans are the victims of medical negligence. Misdiagnosis is a serious problem. On average, doctors listen to their patients for about eleven seconds before they interrupt them.

In that brief time, it’s impossible to learn any meaningful information about the patient’s symptoms. Compounding the problem, many doctors do not order a full battery of tests because doctorsare sometimes afraid the insurance company will not pay for the tests.

Other involve surgical mistakes. It seems almost inconceivable that a surgical team could remove the wrong limb or leave a foreign object inside a patient’s body.

But in a busy and fast-paced emergency room, a slight communication or concentration lapse can have disastrous results.

Finally, some medical negligence cases arise during recovery. Hospitals should be where people go to get better. Unfortunately, perhaps due to an unsterile environment or a lack of physician attention, many people leave hospitals in worse shape than they were in before.

Significant compensation may be available in these and other medical negligence cases. To prove medical negligence, the victim/plaintiff must establish the following elements by a preponderance of the evidence (more likely than not).


Doctor-Patient Relationship

The first step in proving medical malpractice is establishing a doctor-patient relationship. Normally, this element is quite straightforward. Typically, under Georgia law, the exchange of money creates a professional relationship between doctors and patients, attorneys and clients, and so on. But consider the following common scenarios.

Two Saturdays a month, Dr. Davis plays golf with Vince Victim. One day, as they approach the green on the tenth hole, Vince tells Dr. Davis that he sometimes has trouble breathing and that he feels tired a lot. Dr. Davis tells Vince that he may have an illness, but it is definitely not cancer. Did that exchange amount to a professional relationship? Furthermore, if it turned out that Vince did have cancer, is Dr. Davis liable for damages?

Velma Victim goes to Dr. Daniels for her annual exam. Dr. Daniels is very busy that day and only briefly looks at Velma’s chart. After she gives Velma a clean bill of health, Dr. Daniels says she will not charge Velma for the visit since it was so brief. Again, did that exchange create a doctor-patient relationship? If Velma wants to know how to prove medical malpractice, it’s a very important question.

Negligent Care

In a nutshell, negligence is a lack of ordinary care. Sometimes, the standard of care is easy to establish. For example, the standard of care in car crash cases is almost always reasonable care. But when it comes to proving medical negligence, this element is a bit more complex.

In medical malpractice cases, the standard of care varies based on several factors. These factors include the doctor’s physical location, the amount of training the doctor has, and the doctor’s background.

This aspect of a medical negligence case almost always involves expert witnesses. The victim/plaintiff uses experts to show that the doctor’s care fell below the acceptable standard, and the defendant calls expert witnesses who basically say the exact opposite.

The jury always evaluates the credibility of the witnesses. So, in terms of how to prove medical malpractice, Georgia jurors must also evaluate the credibility of expert witnesses. However, under both Georgia and federal law, the judge acts as a gatekeeper in these situations. Under the Daubert rule, experts will be allowed to testify only if:

  • The expert’s testimony will assist the jury
  • That testimony has a factual or scientific basis
  • The expert has properly applied the scientific method to the facts of the case

A few states still use an older standard which is not quite as rigorous. As a result, medical malpractice is easier to prove in some states than in other ones.

Were you the victim of medical negligence?

BBGA provides free consultations. Our team is ready to go to work for you today.


As for how to prove a medical negligence case, establishing the standard of care is often the most difficult part. Making a connection between the lack of care and the victim/plaintiff’s damages is usually the second-most difficult part of these claims.

Once again, the victim/plaintiff must use expert witnesses to establish causation. And, once again, the doctor or insurance company will almost certainly call witnesses who insist there is no connection at all. Obviously, choosing the right expert is an important part of proving a medical malpractice case. Some things to look for in a good expert include:

  • Appearance: The old saying that “you never get a second chance to make a first impression” is definitely true in this context. If the witness does not look the part, the jury may not give proper credence to the expert’s opinions.
  • Background: It is pointless to try and hide the fact that the expert has testified in these situations before. All jurors understand that experts are essentially “hired guns.” A limited expert witness background, or one that includes testimony for both plaintiffs and defendants, usually resonates well with most jurors.
  • Daubert Standard: An expert may be extremely compelling on the stand, but if the expert cannot make it past the gatekeeper portion mentioned above, the expert is no good whatsoever. So, when selecting expert witnesses in medical negligence cases, attorneys must ensure that they are properly qualified under the law.

In some cases, an indirect relationship between negligence and damages may be sufficient. But in most cases, the closer the relationship, the better things are for the victim/plaintiff.


Physical injury is the final component in a medical malpractice case. Without physical injury, the victim/plaintiff has no case. Close calls and psychological injuries usually do not count.

Compensation is available for intangible injuries, but there must be a physical component. The discovery rule sometimes comes into play here. The medical negligence case cannot move forward until the victim/plaintiff is fully aware of all injuries. Generally, the statute of limitations is tolled until that happens.

Connect with an Experienced Lawyer

The best way to prove a medical negligence case is to partner with an experienced medical malpractice lawyer in Athens. So, contact Blasingame, Burch, Garrard & Ashley, P.C. straightaway. We do not charge upfront legal fees in negligence cases.

1 Star2 Stars3 Stars4 Stars5 Stars
(No Ratings Yet)