The first question that needs to be asked is what must a victim/plaintiff prove to obtain maximum compensation in a medical negligence case? Mostly because of punitive damages, the average payout in a negligence case is rather high. Examples of medical malpractice include birth injuries, surgical errors and medication administration errors. Dangerous drug injuries, like injuries due to unadvertised side-effects, are the manufacturer’s responsibility and not a doctor’s responsibility, at least in most cases.
A Kansas City personal injury attorney has both the burden of proof and the burden of persuasion. The burden of proof is basically convincing a judge in a pretrial hearing. The burden of persuasion involves persuading jurors at trial.
Preponderance of the Evidence
This legalese term means “more likely than not.” Picture two equally sized stacks of typing paper sitting side by side. If someone moves a single sheet from the stack on the left to the stack on the right, the stack on the right is taller than the one on the left. That’s an image of the preponderance of the evidence.
The burden of proof is much higher in criminal court. O.J. Simpson was acquitted in criminal court. Then, a civil jury heard the same evidence and reached the opposite result.
This scale applies to the greater weight of credible evidence. In medical negligence cases, experts on different sides usually have completely different opinions. Jurors decide which witness is more credible.
Clear and Convincing Evidence
This intermediate standard applies to punitive damages in medical malpractice claims. Jurors may award these damages if there is clear and convincing evidence that the defendant intentionally disregarded a known risk.
To put this standard in perspective, clear and convincing evidence is usually the burden of proof in child custody cases. Most parents would want jurors to be very certain before they agreed to let the state remove children from their home.
The average payout in a medical negligence case varies significantly, largely depending on the evidence. For a free consultation with an experienced personal injury attorney in Kansas City, contact the Krause & Kinsman Law Firm. We do not charge upfront legal fees in these matters.
What’s the difference between medical malpractice and medical negligence?
These concepts are the same. Malpractice usually refers to professional negligence, like medical malpractice or legal malpractice.
How soon will my claim settle?
Very few medical malpractice claims settle quickly. These claims are usually very complex.
What is the assumption of the risk defense?
This defense excuses negligence in some cases. A surgical waiver might, or might not, support the assumption of the risk defense.