How to Prove Negligence at a Hospital or Nursing Home

Hospitals, nursing homes and other medical providers owe patients a greater degree of care than one individual owes another. This is because health care professionals are entrusted with the medical treatment of individuals. When a nursing home or hospital is negligent, the victim may pursue a medical malpractice against it.

What Is Medical Malpractice?

Medical malpractice is a specific personal injury case in which the defendant is some sort of medical provider. It alleges that the defendant breached its duty of care while providing some type of medical care or treatment to the patient.

What Are the Legal Elements of Medical Malpractice?

The plaintiff in any lawsuit must be able to establish all of the legal elements in order to recover. If any of the elements are missing, the victim should not prevail. In civil cases, the standard of review that the jurors use is the preponderance of the evidence. The jury must decide if the plaintiff has established that it is more likely than not that the defendant met all of
the legal elements of the claim. In a medical malpractice case, the following legal elements are required:

Duty of Care

The first element that the victim must show is that the hospital or the nursing home had a duty of care to him or her. In many cases, this element is easily established because of the contractual relationship between the healthcare provider and the patient. However, medical malpractice cases may involve doctors who are independent contractors and not employees of the hospital or nursing home, which can complicate the question of which entity owed a duty to the plaintiff. The duty of care that is owed is the medical treatment that a reasonable medical provider of the same skill and education as the defendant would have provided under the circumstances.

Breach of Duty

The next legal element that the plaintiff must establish is that the hospital or nursing home breached the duty of care. In medical malpractice cases, this is usually proven by showing how the medical provider’s actions deviated from the accepted standard of care. This often requires testimony from one or more medical experts regarding what other healthcare professionals would have done under the circumstances.

There are many ways in which a breach of duty of care may occur. For example, the healthcare provider may have failed to diagnose the condition that he or she should have been able to diagnose given the named symptoms. Patients can receive damages for those injuries that they suffered from this failure or from a delay in treatment.

In other situations, the healthcare provider may make a mistake, including obvious mistakes such as leaving surgical equipment in the patient or not performing a medical procedure in an appropriate manner. In nursing home cases, this breach may arise from not feeding the patient properly, not ensuring that he or she moves enough to avoid bed sores or not making sure the patient takes his or her medication. Unsanitary conditions in the nursing home or hospital may result in infection or an exacerbation of symptoms.


The victim must also be able to establish the direct link between the breach of care and the injury that resulted. In legal terms, this requires the patient to show that but for the breach of duty, the patient would not have experienced the injuries. This can be a difficult element to prove. In some instances, even if the doctor missed a diagnosis, the prognosis may have been the same as if it had been determined earlier, such as is the case with lethal conditions.


The victim must have suffered damages in some form. It is not enough for the victim to be displeased with treatment. Instead, he or she must have some type of economic or non-economic harm. Damages include medical bills associated with additional treatment that is warranted given the breach of duty. It also includes lost wages that the plaintiff experiences due to the need to miss work for treatment and recovery. Non-economic damages include pain and suffering and emotional anguish.

Legal Assistance

Due to the complexity of medical malpractice cases, it is advisable to seek legal assistance. A personal injury lawyer can discuss the circumstances of the case to determine whether there is a viable case.

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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case.

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