What Do Medical Malpractice Lawyers Do?

At your first meeting, an experienced medical malpractice attorney will explain the steps of a medical malpractice case. You will also learn what standards of proof and evidence are needed to win your case.


  1. Duty
  2. Standard of Care
  3. Causation
  4. Damages


“Duty” is usually the easiest element to prove. You simply have to show the medical professional you are suing had agreed to provide you with medical care. Once that agreement exists, the law requires the medical services be delivered up to the “standard of care.”


The law does not hold doctors to a standard of perfection. The law recognizes that medicine is as much an art as it is a science, and a “good outcome” is never guaranteed. Therefore, doctors are held to a standard known as reasonable care: what a reasonable medical professional with similar skill and training would do under like or similar circumstances.

In most cases, a jury decides. But, most times, juries are made up of people with no medical training. So how would a juror know what reasonable anesthesiologist was supposed to do in the face of hypovolemia during a cholecystectomy? Unless the juror was an anesthesiologist, she wouldn’t. So, the law in most states requires each side to hire medical experts to provide their opinions about what a reasonable medical provider was supposed to do under the circumstances of your case.

It should not surprise you to find out the experts hired by your lawyer will most often disagree with the experts hired by the lawyer for the doctor or hospital you are suing. Attorneys who are experienced at handling medical malpractice cases will usually have built relationships with top medical experts who are willing to help patients prove their claims. These relationships take years to develop, but they are critically important to the potential success of your case. Many medical malpractice cases are won or lost based upon which side had the more believable and credible medical expert witnesses.


Proving your doctor fell below the standard of care is only the first step in winning a medical malpractice case. The next step is proving the doctor’s mistake caused you harm.

In a civil case, like a medical malpractice case, the standard of proof is called “a preponderance of the evidence.” This is supposed to be a much lower burden than the criminal standard of “proof beyond a reasonable doubt”. It is a lower standard because the dispute involves money damages and not anyone’s personal freedom.

However, research has shown time and time again jurors in medical malpractice cases ignore this standard. Jurors simply do not like finding a doctor was negligent by a “mere” preponderance of the evidence. Whether it is because they believe doctors are generally good people, or the plaintiff was already sick, jurors who find for the doctor in medical malpractice cases will often tell the lawyers “we just weren’t 100% convinced”, or “we had some doubts”. This means jurors in medical malpractice cases treat them as if the doctor is being accused of a crime and require proof “beyond a reasonable doubt” in order to find in favor of the patient.

It is extremely important to keep this in mind when dealing with the causation element of your claim. Because of this “heightened” standard jurors begin with, even when they think the doctor made a “mistake” they will often find against the plaintiff by concluding that the plaintiff was already sick so the doctor’s mistakes caused no harm. The attorney you choose must understand this juror bias, or your case will have little chance of success.


This last element that must be proven in a medical negligence case is called “damages”. It gives the doctor or hospital one last chance to argue that even if his/her mistake caused harm, it wasn’t very much because the patient was already sick, or wouldn’t have lived very long with their disease.

Experienced medical malpractice lawyers know these cases are complicated, and usually rise and fall on expert testimony. The damages component of your case is no different. In fact, to you, it’s the most important part of your case. If you hadn’t suffered pain, embarrassment, lost income, or the inability to care for yourself, you probably wouldn’t need to file a lawsuit. Therefore, it is vitally important your attorney be as prepared to prove your damages claims as he or she is to prove the other case elements.

You should ensure the attorney you choose understands all of the ways your life has been impacted, and has the skill and experience to prove your damages in court.