The medical malpractice claim

Elements of the case

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.^[4]

1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
2. A duty was breached: the provider failed to conform to the relevant standard care.
3. The breach caused an injury: The breach of duty was a proximate cause of the injury.
4. Damage: Without damage (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.