Physicians and doctors are obligated to take appropriate care of patients. The law recognizes that no doctor is perfect, but this fact does not excuse mistakes in treating a patient. A medical malpractice claim requires a patient to show the (1) doctor owed a duty to the patient; (2) that duty was breached; (3) causation between that breach and injury; and (4) injury to patient. These elements are discussed and explained below.

Doctor’s Duty to Patient

Doctors are required to act with care when treating patients. In Chandler v. Neosho Memorial Hospital, the Kansas Supreme Court set out this level of care as the “degree of learning and skill ordinarily possessed by members of the profession” and in line with the community where the doctor practices. This means that the doctor must meet the level of care for doctors in that community to avoid committing malpractice. This standard of care must be met in two ways: the doctor must possess adequate knowledge to begin with and must also exercise the level of care that doctors in the community would exercise. Establishing this will almost always require an expert to testify because this is outside the common knowledge of jurors (and judges, for that matter). An exception is when anyone could tell the actions were unreasonable. For example, if a doctor amputates the wrong leg during a procedure, this would clearly be outside the reasonable standard of care.

Breach of the Doctor’s Duty

The basis of medical malpractice claim is the treating physician fails to meet the standard outlined above. The court noted in Webb v. Lungstrum, the fact that a patient is injured does not automatically mean that a breach of the doctor’s duty had to have occurred. Instead, the injured patient will have the burden of proving what exactly the doctor did or failed to do that fell below the standard and caused the harm. Examples of this can include failing to take an x-ray when appropriate (as in Webb) or failure to ensure a patient does not have a common allergy before prescribing medications. Unlike with setting the standard, experts are not necessary for establishing a breach. A jury, after learning what the standard is for a specific set of facts, can decide if the doctor failed to meet the standard. An expert can certainly offer his or her opinion on that issue, though.

In some circumstances, an injured patient might not be able to identify exactly what a doctor did to cause the patient’s injuries. As noted above, this may prevent recovery. But in other cases, the court will not impose this impossible burden on the patient. This is prevented by using a doctrine known as res ipsa loquitor. For this doctrine to apply, the result has to be more than just injury: it must be unusual injury. The patient must show that the doctor had exclusive control over the patient’s treatment, that the injury that occurred would not have occurred but for a breach of the standard of care, and that the patient did not contribute to this result. These factors lend themselves to medical malpractice cases involving surgical errors. In such cases, the doctor, and medical staff assisting him or her, will have the necessary exclusive control. If a patient suffers injuries after the surgery that would not occur naturally, the patient is excused from showing a specific breach. Instead, the jury can infer a breach based upon these three factors.

One final and fruitful source of breach is failure to obtain informed consent. Informed consent is affirmative agreement by the patient to undergo the prescribed treatment. This consent is only valid after the doctor explains the risks inherent with the treatment, e.g., the pros and cons. A doctor can’t disclosure every single danger that a treatment may pose, though. Instead, as the Kansas Supreme Court laid out in Tatro v. Lueken, the doctor must warn of dangers a reasonable doctor would think necessary to warn the particular patient of. For example, an older and heavier patient would likely need to be warned of the possibility of a heart attack brought on by treatment; that same risk, though present to a lesser degree, may not need to be discussed with a younger and fitter patient. When a doctor fails to disclose sufficient risks of a treatment, and one of those risks injures the patient, the doctor has breached the duty of care required of the profession.


The next step in establishing liability is showing the substandard care is what caused the injury. Simply because a patient gets sick or fails to recover from an operation is not sufficient to show causation. Instead, the patient must prove that the breach by the doctor actually caused the injury and was the proximate cause of the injury. Actual cause simply means that the injury would not have occurred but for the substandard care. This can be difficult in medical malpractice cases, because treatment and recovery are difficult to predict. For example, it may be extremely difficult to show that a patient would not have gotten an infection after surgery but for a breach by the surgeon, because infections are commonplace following surgeries. Proximate cause simply requires that the injury is foreseeable to the doctor when she or he breaches the duty of care. Only when a superseding act of another occurs does proximate cause generally fail in these claims.


For a valid claim of medical malpractice to exists, the patient must have suffered an injury. This is generally the easiest step to prove, as it will be what leads the patient to seek redress to begin with. In some cases, it is impossible to miss the injury: the patient may have a limb amputated, become very sick, or even die. In medical practice cases, the injury may be a “lost chance” for a better recovery. This type of injury was first established in Delaney v. Cade. Lost chance injuries are those that result from a failure to diagnose or properly treat a condition, resulting in the patient suffering an irreversible negative effect. Difficult cases arise when a doctor fails to diagnosis a disease that cannot be cured but can be mitigated the earlier it is diagnosed. The patient must prove that they would have been in a better position had the doctor diagnosed the condition, which may be difficult to do and nearly impossible to reduce to monetary damages. In the end, it will depend on if the jury is convinced that the patient was harmed by the missed diagnose.

Medical malpractice claims can be difficult cases to successfully bring to court. The complex nature of the medical practice and the need to predict what would have happened if different actions had been taken are severe obstacles to successfully bringing these claims. Because of this, hiring an experienced attorney is absolutely essential. This ensures that you have the best chance to recover for the injures caused by substandard medical treatment and care.