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Shifting the burden of proof in a medical malpractice case

If you're a regular reader of this blog then you know that medical malpractice claims can be complex and challenging to win. This is partly because the evidentiary issues that can arise are significant. When they are improperly handled, plaintiffs can be left hung out to dry with no compensation to help them pay their medical expenses and make up for their lost wages. Another reason that these lawsuits can be difficult is because of the use of expert witnesses. In fact, many medical malpractice lawsuits involve the opinion of an expert who works for the defendant. These experts may have biases that are detrimental to a plaintiff's claim. Is there a way to circumvent their testimony?

Yes, to a certain extent, in some situations. The law recognizes a theory known as "res ipsa loquitur," which means "the thing speaks for itself." Under this theory, a plaintiff can shift the burden of proof to the defendant if certain factors are shown. In order to successfully invoke the theory, a plaintiff must prove that evidence of the injury's cause cannot be obtained, the injury is not one likely to have been suffered without negligence, the plaintiff did not cause the injury him or herself, the defendant had control of the item or event that caused the injury, and the injury could not have been caused by anything other than what the defendant possessed and used at that time.

Those who are able to successfully shift the burden of proof stand in a strong position to impose liability and recover compensation for their damages. After all, it becomes much harder for a defendant in these situations to prove they were not negligent as opposed to defending against allegations of medical malpractice.

Pursuing this legal avenue takes a lot of work and skill, but it is still a legal option worth considering. Those who wish to learn more about the legal routes available to them should consider contacting a qualified legal professional.

Source: FindLaw, "Proving Fault in Medical Malpractice Cases," accessed on March 30, 2017

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