A medical error can change your life forever, but how do you legally prove that it was actually a mistake? In this blog post, I’ll discuss how you, as a patient or a patient’s surviving relative, can prove that a healthcare provider made a medical error.
The medical record is the guiding document
In a medical malpractice case, the medical record serves as the foundation. It details what was done, decided, and assessed, and when. At least, that’s how it should be. In practice, patients often have a different recollection of the treatment than what is recorded in the file. Those recollections are also important, but they are always weighed against what is in the file. Furthermore, great weight is given to the statements made by the doctor or healthcare provider regarding this matter, including by the judge.
What if the file is incorrect?
This is where it gets complicated. Medical records are often incomplete. There may be consultations that weren’t documented, symptoms you reported but that aren’t mentioned anywhere, or appointments that weren’t recorded. It’s also possible that something is written in the record that, in your opinion, simply doesn’t match what was actually said or done.
That can feel really unfair. As a patient, you’re often at a 1-0 disadvantage. So how do you prove that you’re right?
In that case, you’ll need to be able to prove that your version of events is correct in some other way. This can be done, for example, through witness statements, messages you sent at the time, notes you kept yourself, log data, or other means. But to be honest, that’s usually not easy. If the case file is flawed or incomplete, the burden of proof on you is quite heavy. That doesn’t mean the case is hopeless, but it’s important to keep this in mind.
What I Can Do for You
I help clients assess whether there is sufficient evidence for a legally viable case. This begins with a critical analysis of the medical records: what is in them, what is missing, and what does that mean? Sometimes it’s clear early on that the evidence is strong or that the medical record aligns with the client’s own account. Sometimes it isn’t; in that case, I’ll advise you on the options still available to strengthen the evidence and whether it’s worth pursuing those options.
Would you like to know if you have sufficient evidence for a legally viable medical malpractice case? If so, you can have us prepare a medical-legal feasibility study for you. You can read more about this in the following blog post: ‘Medical Liability Cases: Medical-Legal Feasibility Assessment.’.
Do you suspect a medical error? I'd be happy to discuss your options with you.
Mr. Van de Velde is an attorney at Beer advocaten and represents only victims and their surviving relatives.
