Legal Information on South Carolina Law

What are the Elements of a Medical Malpractice Case

Medical malpractice is based on the tort of “negligence,” which means the doctor owes you a duty to act as a reasonable physician would act under the same or similar circumstances.

In some instances, if the doctor intended to injure you the action would be brought under an intentional tort of battery or assault. This is very rare in medical malpractice situations as there are standards required to become a doctor and there is a professional peer reviewed association for policing the profession. 

However, while a doctor might not intend to injure you, the doctor can still act unreasonably and be guilty of medical malpractice.

In this article you will learn:

  • What a “standard of care” is
  • How to determine the standard of care in a particular case
  • The elements of a negligence cause of action

Do you have a medical malpractice case?

Understanding Medical Malpractice

Medical malpractice means the doctor owed you a duty to treat you and failed to act reasonably in the care he rendered to you. This means if you go to a doctor for a broken leg, the doctor fails to treat your leg in the way reasonable doctors believe it should be done, and you suffered harm as a result then they may be guilty of medical malpractice. 

One common question we get is are there different types of medical malpractice? The short answer is the law governing medical malpractice depends on the medicine, but the same legal duties remain regardless of the field of medicine.

“Basically when a doctor does something that other reasonable doctors wouldn’t do. You potentially have a case for medical malpractice.”

Important Elements of Medical Malpractice

This area of law is very detailed and can get messy fast. Your best bet is to consult with an experienced medical malpractice attorney as soon as possible, but there are several terms you should know starting out.

Standard of Care

If a doctor undertakes treatment of you, they must do so within the “standard of care.” The standard of care is what a reasonable doctor would do under the same or similar circumstances, hence a duty to act reasonably.

If your next question is: how do you know what the standard of care is? Then all you really need to know is two things:

You won’t find the standard of care online even on UpToDate. Many doctors who have had decades of experience working in the field of medicine disagree. It is your lawyer’s job to find experts who will testify as to what they believe the standard of care should have been in your case.

If you had an unexpected outcome, then you need to talk to a lawyer. Don’t spend hours searching the internet or reading medical articles to determine if the doctor didn’t treat you right. If something unexpected happened, then talk to a lawyer. They will consult with an expert to determine the facts about what happened and what should have been done.


If the doctor doesn’t treat you then they owe you no duty. Doctors are under no obligation to treat you but if they undertake medical care they must do so within the standards of their profession. If they don’t owe you a duty, then you can’t sue them for medical malpractice. 


Did the doctor act outside of the standard of care and “breach” their duty to you? If a doctor does something other than what reasonable doctors would do, it is called a deviation from the standard of care.

The law regards a deviation from the standard of care as a breach of the duty that was owed to you. Only if the court finds that they breached their duty to you can you recover any damages, depending on the fourth term.

Proximate Cause

Proximate cause means that if there were multiple causes for your injury at least one of them must have been from the breach of the duty owed to you. If you were injured but the doctor’s deviation from the standard of care wasn’t one of the causes of your injury, then you can’t recover damages.


You must have damages to sue for medical malpractice. Pain and emotional damages do count. The law divides damages into three separate categories: actual damages, pain and suffering, and punitive damages.

Actual damages are the amount you lost because of the injury.

Pain and suffering is the amount you get because of the pain you had to endure. There are limits to the amount of pain and suffering damages which can be recovered.

Punitive damages are only awarded in rare circumstances where the doctor acted with willful wanton or reckless disregard for you and medical standards. Punitive damages are meant to punish the doctor for the action to make a statement beyond merely making you whole again.

So how are medical malpractice cases proven?

They are proven by first speaking with a lawyer. Your lawyer will order the medical records. Your lawyer will then speak with medical experts to determine if there was a deviation from the standard of care. If there is a deviation from the standard of care, then your lawyer will speak to an economist and determine the extent of your injuries. Once your damages have been ascertained then your lawyer will file a “Notice of Intent to File Suit” with an affidavit from the expert, stating at least one allegation of malpractice.

If the case is not settled after filing a notice of intent or during the resulting mediation, then a summons and complaint will be filed, discovery of facts will be undertaken, and there will be a second mediation. 

At mediation the parties may agree to settle the case. Unlike car wrecks settlements don’t generally happen quickly; they happen after many months or years. If settlement fails, then the case goes to trial where your malpractice lawyer will prove your case to a jury.

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