tune with what other providers would do in a similar situation. To be
guilty of negligence, the plaintiff must provide evidence that these 4
elements were present during the incident in question:
• Duty. In every healthcare interaction, you have a duty to the
patient to act reasonably. Not surprisingly, duty is very easy to prove.
• Breach of duty. This boils down to what you did compared to
what an average "reasonable person" in your position would do.
Chances are, none of the jurors during a medical malpractice case will
be members of the healthcare industry — so how can they know what
a "reasonable person" would do in your shoes? You and your lawyer
need to frame it out for the jurors. Bring AORN's recommended prac-
tices as evidence. Bring in your facility's policies and procedures,
which reflect your local standard of care. Solicit expert testimony
from nurses who can tell the jury how you met the standard of care.
Remember, you don't need to convince the jury you're the perfect
provider. You just need to show you were average and reasonable.
• Causation. If a breach of duty has been established, the patient
must show it led to specific damage. They need to tie your breach of
duty to the injury they suffered in order to prove what you did or did-
n't do caused harm. The courts have said that to prove causation, the
damages must have been foreseeable as a result of the act.
• Damages. If causation is proven, the patient must quantify their
financial damages based on pain and suffering, impacts on earning
capacity, costs to correct or treat the injury and life expectancy,
among other factors. Damages can vary widely depending on the
jurisdiction.
Let's revisit the case involving the hot instrument. If you had told
the surgeon, "I'm not giving this to you, it's too hot," and the surgeon
replied, "Give it to me anyway," you're likely to be viewed as having
met the standard of care by explicitly warning him not to proceed
Medical Malpractice
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