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Duty and breach of duty in medical malpractice litigation

In any personal injury case, including accusations of medical malpractice, the plaintiff is expected to prove five elements to be true. These elements are Duty, Breach of Duty, Cause in Fact, Proximate Cause and Damages. It is the job of the defendant’s attorney to refute the plaintiff’s claims and show the evidence does not support one or more of these elements of a personal injury claim.

The first two elements are fairly intertwined. If the defendant did not owe a duty to the plaintiff, obviously there was no way he or she could have “breached” the duty. But what does “duty” mean in this context?

In torts law, a “duty” exists when the defendant had a legal relationship to the plaintiff, and thus had an obligation to act in a certain manner toward the plaintiff. The relationship need not be as formal as doctor/patient. In car accident cases, the question might arise if the defendant, who was one of the drivers in the crash, owed a duty to the passengers in the other vehicle.

However, it is usually quite clear that a duty existed when a doctor agrees to treat a patient. That duty is to exercise reasonable care when examining, diagnosing, treating the patient and so on. The question then becomes, did the doctor fail to live up to that duty in some way.

In medical malpractice cases, the answer can be quite technical, usually requiring expert witness testimony and other evidence from both sides to get as close to the truth as possible.

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