Medical errors part 2: Evidence in medical records

Medical errors part 2: Evidence in medical records

You were the victim of a medical error? Of course, we understand your concerns.

In three articles, we would like to give you the most important things about liability in medical malpractice. Part 1 focused on the basic legal principles in medical malpractice. This article will discuss evidence in a medical malpractice case. Our final part will focus on (the importance) of legal expenses insurance.

Of course, we are also available for an initial free legal consultation. Please contact us for this via our website, by phone at: 03/369.28.00 or by e-mail: info@bannister.be.

With this second article, we would like to give a brief overview about proof in medical malpractice where we would like to answer the following questions: Who must provide the evidence? Here we make a distinction between the contractual and the extra-contractual situation. If you have questions about this, please refer to the previous article where this distinction is explained in detail. What means of proof can I use? How is concrete damage proven?

1. Who bears the burden of proof in a contractual relationship: importance of distinguishing effort obligation and result obligation

To work out who bears the burden of proof in a medical malpractice case, a distinction should be made between effort obligation and result obligation. Depending on the type of obligation, the burden of proof will differ:

1. Effort Commitment: necessary efforts should be made: burden of proof is on the patient;
2. Results commitment: a certain result must be obtained: burden of proof is on the healthcare provider/hospital: provide evidence of extraneous cause

For a detailed explanation of this distinction, please see our Medical Law Specialist website.

2. Who bears the burden of proof in an extra-contractual relationship: the new rules of evidence

The basic principle in burden of proof is that whoever claims something bears the burden of proving fault, damages and causation. In the case of medical malpractice, this will usually be the victim or the victim's next of kin. The Civil Code has been overhauled in recent years. The rules of evidence have also been thoroughly revised. Book 8 of the new Civil Code provides for some deviations from the (strict) basic principle and, in certain cases, relaxes the evidence that must be provided.

If the basic principle manifestly unreasonable would be, provision can be made for a reversal of the burden of proof. That is, instead of the victim of the medical error, the health care provider or hospital will bear the burden of proof.

Moreover, it stipulates that evidence must be provided with a degree of certainty. This is relaxation of the previously applicable absolute certainty. In certain cases, even proof by probability is sufficient. The law indicates that this is the case when proving a negative fact or a positive fact for which, because of the very nature of the fact to be proved, it is not possible or reasonable to require certain proof.

3. How can I prove medical malpractice?

To prove medical malpractice, it will be important for you to gather enough evidence to make it plausible that there are damages that may be due to a mistake by the health care provider or hospital.

If a reversal of the burden of proof is requested, it will still be important for you to present sufficient elements to make it plausible that an error would have occurred causing you to suffer damages.

It is therefore important to gather sufficient evidence. This includes:

1. Your patient record;
2. Photos;
3. Witness statements;
4. A medical report from your (primary) physician

Here it is important to emphasize that a report from your family doctor will usually be insufficient to prove medical malpractice. However, it can count as a beginning of evidence to support e.g. certain physical observations. However, it will be important to seek the advice of a specialized doctor (the medical council).

If proceedings are initiated in court, possibly, if there is a discussion between the parties, a court expert will be appointed. This expert will again prepare a report to provide an opinion to the court as to whether or not medical malpractice has occurred and possibly estimate bodily injury.

In the event of medical malpractice, it is important that you act immediately. This is especially important for establishing damages, medical malpractice and causation. If several years have passed, without the case being time-barred, providing evidence will only become more difficult.

In addition, it is very important that the injuries due to the possible medical error be established before any new treatment is performed by another doctor. Failure to do so will make it very difficult to impossible to prove which treatment caused the injury.

4. How will concrete damages be proven?

In addition to proving medical malpractice, proof of concrete damages must be provided. It is important to remember that you must bring proof of all expenses you incur related to the error. Without proof, no compensation will be awarded.

Physical damage will be determined by a physician. This can be determined by:

1. The in-house counselor;
2. By the own council doctor together with the other party's council doctor;
3. By a court expert;

Of the other costs you have had to incur, you will have to bring the proof yourself. Without concrete evidence of the costs/damage incurred, you will not be able to obtain compensation. It is therefore important that you keep all proof of these costs. Think of the costs of medication, treatments at a physiotherapist, consultations with another doctor, etc. You will need to request an overview from your health insurance company to find out which costs were covered by your health insurance company and which costs you had to bear yourself. These costs will be deducted from the final compensation.

For medication, it is best to keep a copy of the prescription as well as proof of payment with your pharmacist.

For relocation expenses (if any), it is recommended that you list when you made which trip and the number of miles.

Were you a victim of medical malpractice yourself? Or do you have questions in gathering the necessary evidence? Contact one of our specialists for an initial free legal consultation.