It is the very duty of Hospitals, nursing homes, and other medical providers to take full care of their ailing residents. The patients’ well-being is their responsibility. They need to safeguard their health and bring possible improvement to their medical condition. This is because they are entrusted with the medical treatment of every individual patient. When a nursing home or hospital is found negligent, the victim may file a case of medical malpractice against it.

Medical malpractice is a particular type of personal injury case in which the defendant is a medical provider of some form. The plaintiff, usually a patient himself or the patient’s close one who claims that the defendant breached his duty of care while providing some type of medical care or treatment to the patient.

Legal Elements of Medical Malpractice

The plaintiff in any lawsuit needs to prove all of the legal elements in order to get recover. In case any of the vital pieces of information is missing, the victim shall not liable to pay the entire compensation. The standard of review that the jurors use is the preponderance of the evidence in civil cases. 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.

Here are the legal elements that are required in a medical malpractice case:

Duty of Care

This is the first element the victim must show that the hospital or the nursing home had. In general, this element is easily established, thanks to the contractual relationship between the healthcare provider and the patient. However, medical malpractice cases might also involve doctors who are independent contractors and not direct employees of the hospital. The duty of care is the medical treatment that a reasonable medical provider of the same skill would have provided under the circumstances as the defendant.

Breach of Duty

This is the next legal element that the plaintiff must establish. He should prove that the hospital or nursing home breached the duty of care. This is proven by showing how the medical provider’s actions differed from the accepted standard of care. Testimony from one or more medical experts might be needed here.


It is needed for the victim must establish the direct link between the breach of care and the injury that resulted. This requires the patient to show that without the breach of duty, the patient would not have experienced the injuries. This is considered to be a difficult element to prove.


The victim must have sustained damages of some form, whether physical or emotional. If the victim is only displeased with the treatment, it is not enough. He or she must have some gone through some harm, be it economic or non-economic. Damages usually consist of medical bills associated with additional treatment that is attributed by the breach of duty. It includes the plaintiff’s lost wages due to loss of time at work. Important treatment and recovery is mostly a cause for this loss. Non-economic damages include pain and suffering and emotional trauma.

Legal Assistance

It is recommended to seek legal assistance due to the probable complexity of medical malpractice cases. A nursing home abuse attorney can discuss the circumstances of the case to determine the viability of the case.

Here are the behavioral patterns that can lead to a civil lawsuit:

  • Irresponsibility in keeping the premises safe and hazard-free
  • The facility and its staff might be aware of certain lurking dangers in the premises but they have not given an adequate warning or done nothing to make the premises safer. This might include the prevention of slip and fall accidents, preventing one resident from attacking or harming another in any way etc.

  • Negligent hiring
  • This indicates hiring an improper employee with a low sensibility. Such an employee might end up neglecting, abusing, or even intentionally harming a patient. The failure to provide proper training to the employee is also looked at as a major concern.

  • Negligent supervision
  • With no proper supervision of the staff, certain mentally disturbed residents might end up causing self-harm.

  • Failure to maintain proper health and safety policies
  • It is essential for the medical agents to keep clean and sanitary conditions in resident rooms and in common areas. Failure to do so can have a negative impact on the patients.

  • Failure to provide adequate medical treatment
  • This goes with the medical standard of care under the circumstances. There may be a case for medical malpractice against the nursing home facility or the individual medical agent when the provision of sub-standard medical care causes harm to a resident.

The Standard of Care

On accepting Medicare, the nursing home is bound to comply with the Federal Regulations that set forth the standard of care. The two significant rules set by this standard of care are:

  1. The facility must ensure that the resident environment remains free of accident hazards under normal conditions
  2. The facility must enable each resident to receive adequate supervision and assistance devices to save themselves from any form of accident.

If the nursing home fails to follow these regulations and a resident is rendered injured in any way, the nursing home might even be sued.

Here are the damages recoverable by Survivors, Heirs or Dependents:

If a complaint is filed against a nursing home where the resident has died, the resident’s survivor or survivors may take legal action to recover damages for the following:

  • Loss of consortium or relationship
  • Loss of parental support, advice, and guidance
  • Loss of the companionship of the deceased person
  • Mental anguish and grief of the survivor or survivors
  • Funeral and burial expenses

Structured Settlements

These settlements involve periodic future payments and not one lump sum payment to an injured plaintiff. These settlements are used increasingly in personal injury litigation in the present times. However, these settlements usually involve special considerations for the elderly.

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