Medical malpractice is one of the most difficult types of personal injury cases to prove. This is because the burden of proof in these cases is more complex than someone hitting your car or the fact that you slipped in a puddle of water.

Is Medical Malpractice Difficult to Prove?

In your typical personal injury case, the plaintiff must prove that:

  • The defendant behaved negligently
  • The defendant’s negligence caused their injury
  • The defendant’s negligence led to their damages

Where malpractice cases differ is the fact that medical professionals have a duty of care to their patients that goes above and beyond the duty of care the average person owes another.

What You Need to Prove

These are the four conditions that must be proven in order to have a successful medical malpractice suit. Once you have read them, you will understand why these cases are so difficult to win.

Duty of Care

The first thing that must be proven in a medical malpractice case is that the doctor or other medical professional or institution had a duty of care toward the plaintiff. This is the easiest part of the process. In order to prove duty of care, you need to prove that you were a patient at the time the malpractice happened. Medical records or bills can prove this.


Proving negligence is more than difficult—it’s expensive. To prove negligence you’ll have to demonstrate that the doctor did not do what another doctor would have reasonably done under the same circumstances. The most common way this is done is by bringing in expert witnesses.

Medical expert witnesses make more than double what other expert witnesses make, and their average fee is $555 per hour. For every two hours of expert witness testimony, you are shaving more than $1,000 off of any potential settlement or award.

Breach of Duty of Care

Proving that the doctor breached their duty of care is also difficult. In these cases, you must prove that the doctor failed to live up to their duty of care toward you, that they were negligent, and that this combination was the direct cause of your injury or illness.


Like proving your patient-physician relationship, proving your economic damages is also fairly straightforward. Your damages may include:

  • Medical and hospital bills
  • Pharmacy bills
  • Invoices from disabled access home renovations
  • Invoices from disabled access vehicle modifications
  • Paycheck stubs and statements from your job regarding your missed work

One type of economic damage that is more difficult to prove is your future lost income. The number of years you’ve been in your career, your salary, and your level of education may be used to calculate this figure.

Non-economic damages like pain and suffering are also more difficult to prove, and many states have a cap on the amount you can be awarded for pain and suffering. This figure will be determined using either the “per diem” method or the multiple modifier method.

Are All Medical Mistakes Malpractice?

According to medical malpractice law firm Morelli Law, medical mistakes result in over 250,000 deaths each year, making this the third-leading cause of death in the United States. Despite this, not all of these cases will qualify as medical negligence.

Some medical mistakes are unavoidable. Others are mistakes another doctor or nurse may have made under the same circumstances. A bad outcome does not necessarily mean that a mistake was made. All procedures have risks, and if you were warned that a bad outcome may be the result of a procedure it is not the doctor’s fault.

Like the rest of us, doctors are human and mistakes can happen. If you believe the medical mistake that caused your injury was the result of negligence, your best bet is to reach out to an experienced attorney for guidance.