While the law varies from state to state (the information contained herein is general) medical malpractice is ordinarily not based on strict liability or absolute standards. In other words, before liability or fault can be imposed against a doctor, it must be shown that s/he was at least negligent in treating the patient. Merely because an untoward result has attained does not mean the physician is guilty of malpractice. Unless the plaintiff proves that the conduct of the physician fell below the requisite professional standards, s/he may generally not recover.

Generally, in order to successfully prevail in a claim of professional negligence against a healthcare provider, a plaintiff (injured party) must establish the following:

(1) There must be a duty owed by the physician to the patient. (This usually arises from the physician-patient relationship.);

(2) The physician must have violated the applicable standard of care in his/her treatment of the patient;

(3) The violation of care must be the direct and legal cause of the injuries to the plaintiff;

(4) Damages – injuries to plaintiff.

In order to establish that the physician or professional deviated from the standards in the industry or practice, the plaintiff's lawyer must present qualified experts to testify as to the minimum standards required in the profession. The expert must have properly reviewed the case, determining what acts and omissions the doctor committed which deviated from the minimal standards required by the profession.

In the 1940’s, 50’s and 60’s, the requirement of securing a medical witness to testify against a fellow doctor whose errant practices caused injury, could prove so difficult as to be an insurmountable obstacle. Many lawyers had to inform well deserving clients in malpractice cases that doctors, as a profession, were practically (not legally) immune from judgments.

Illustrative of this is the following comment by the Supreme Court of Kentucky:

"The notorious unwillingness of members of the medical profession to testify against one another may impose an insuperable handicap upon a plaintiff who cannot obtain professional proof." [Butts v. Watts, (1956) 290 S.W.2d 777.]

Whether this "conspiracy of silence" resulted from professional courtesy between doctors, fear that insurance premiums would rise, or fear of reprisal from colleagues or medical societies, it has, fortunately, become much easier today to obtain the required testimony.

Unfortunately, today many states have imposed caps on damages (irrespective of the award by the jury), and other limitations on the injured parties" right to recover, which have seriously jeopardized a plaintiff's right to recover.

Indeed, in many states, medical malpractice actions are the most difficult types of cases upon which plaintiffs may prevail.

Lastly, as if limitations on a plaintiff's right to recover were not enough, many more states place caps on the amount of attorneys" fees the prevailing lawyer may recover. (By dissuading good lawyers from handling medical malpractice actions through limitation of the amount the lawyer can earn, the medical malpractice victims are placed at further disadvantage.)