In order to determine if a person has a medical malpractice case there are four questions that need to be addressed.

1. Duty:   When a consumer of health care enters the health care system there are relationships created. There are obvious relationships that exist - the physician/patient relationship for example. There are also relationships that are not so obvious - the facility/patient relationship, for example. Such as when a hospital fails to ensure surgeons are appropriately trained and qualified to receive operating privileges at their hospital.

   The duty owed to the health care consumer is not an abstract concept. The duty owed is often referred to as the duty to provide the "standard of care."

   The "standard of care" means the degree of learning, care, skill and treatment ordinarily possessed and exercised, under similar circumstances, by other qualified health care providers in the same field as the person or entity that owes the duty of care.

   The standard of care owed is a national standard and does not rely on local variances. The care provided in Salt Lake City should equal the care provided in hospitals and nursing homes in major metropolitan areas across the nation.

2. Breach:   Once the standard of care is determined, the failure to perform that which is required to satisfy the standard of care, is called a breach. A breach may occur as the result of a act performed which should not have been performed (commission) or the failure to perform an act that should have been performed (omission).

   When a surgeon puts the wrong prosthesis in a total hip replacement that is an act of commission. When a physician fails to obtain a mammogram of a woman complaining of obvious lumps in her breast, that is an act of omission. 
   

3. Causation:   The breach in the standard of care must be the "proximate cause" of the injury suffered. "Proximate cause" is that cause which in an unbroken "chain of events" led to the harm. It is the cause, without which, an injury would not have occurred.

   For example, although a diagnosis of cancer may not have been made in a case, it may not be medical malpractice if at the time the patient was seeing the care provider, that the cancer was so advanced that a timely diagnosis would not have changed the eventual outcome. Similarly, it may not be medical malpractice if the patient's injury is an unavoidable or natural consequence of the patient's condition or treatment received.

   Alternatively, an orthopedic surgeon who places the wrong size of prosthesis in a total hip replacement patient resulting in post-operative pain and disfigurement may be negligent. The failure to discover tumors in the breast of a woman because a mammogram was not ordered and years later is treated for lymph node cancer may be medical malpractice.

4. Damages:   There must be some significant injury that results to the person owed the duty. Disfigurement, physical debilitation, extended hospitalization and even death are only some of the damages. Damages may also be in the form of money that had to be paid by the injured person in treating their injury caused by the health care provider. Damages may also be in the form of pain and suffering experienced by the injured patient and the family. Damages may also be in the form of emotional distress experienced by the injured patient and their families. There may also be a loss of consortium when the significant other looses the companionship and services of a loved one.

   Our system of justice does not award a tooth for a tooth. When damages exist a dollar value is determined and required to be paid by the health care provider who caused the injury. In this way the healthcare provider and other like health care providers are dissuaded from committing medical malpractice in the future. They are punished by having to compensate the victims of their negligence.

   In our examples above the orthopedic surgeon and other orthopedic surgeons will more carefully ensure they choose the correct-size prosthesis the next time they perform a total hip replacement. The hospital will ensure that the surgeons are correctly trained and credentialed to perform the operations to which they have been granted privileges to perform in their facilities.