Medical Malpractice Lawyer, Cleveland OH

As a malpractice lawyer from Cleveland, OH, I am frequently asked how is medical malpractice defined in Ohio?  Or, stated otherwise, do I have a case?  It is important to note that, under Ohio law, the terms “medical negligence” and “medical malpractice” are used interchangeably.  To prove a claim for medical malpractice, the plaintiff (or, the party suing) must prove 3 things: negligence, proximate cause and damages.  I will discuss each of these elements, and the many misconceptions that come into play in these cases, below.


Medical negligence is defined as the failure of a medical professional (doctor, nurse, etc.) to practice within accepted standards of medical care.  How do you determine what standards of care apply to a particular situation?  Frequently, professional associations, for examples, the American Heart Association (AHA), the American College of Obstetrics and Gynecology (ACOG) and the American College of Emergency Physicians (ACEP), publish written guidelines that reflect a consensus among leading authorities in the field as to how to practice medicine in a way that maximizes favorable outcomes and minimizes patient harm.  It should be noted that these professional organizations, wary of being held to the standards that they develop, often include exculpatory language in their guidelines stating that the guidelines do not establish a standard of care.  However, consensus guidelines do establish the standard of care, unless there is an equally safe and effective method of treatment for the same medical problem.

In the absence of written professional guidelines, the standard of care is arrived at through the testimony of expert witnesses who are familiar with the issues.  These experts will rely on their training and experience to explain why a particular act or failure to act by the defendant unnecessarily placed the patient in harm’s way.  Some medical complications are unavoidable.  However, if a healthcare provider subjects their patient to an avoidable injury, then they may be held liable for medical negligence.

One misconception that often enters into jury deliberations is that the defendant’s conduct must be reckless or intentional to result in liability.  This is not so.  We frequently hear jurors say that the defendant “didn’t mean to injure the patient” or “he/she did their best” or “it was an honest mistake.”  Some jurors will also state that they will not hold a defendant healthcare provider liable unless the healthcare provider was under the influence of drugs or alcohol or is proven to be incompetent or has a track record of injuring patients through negligent conduct.  None of this is required by Ohio law to hold a healthcare provider for unnecessary harm.  These misconceptions rise to the level of jury bias that prevents a fair trial.  The patient is not required to prove recklessness, intent or a pattern of poor performance.  In fact, the court will not even allow evidence of prior bad acts into evidence because it is not relevant to the facts of a particular case.  When jurors require this higher level of proof, the patient is denied a fair trial.

Proximate Cause

Proximate cause is a legal concept that I studied intensively over the course of 9 weeks of law school.  However, a jury is expected to master and apply this concept in the course of a week-long trial with only a cursory discussion of the law by the judge.   The overwhelming nature of this task forced me to come up with a simple way to explain “proximate cause” to a jury.  The technical definition of proximate cause is that the defendant’s medical mistake caused or substantially contributed to the injury to the patient.  This sounds simple enough until you consider that the ultimate outcome of many medical conditions is anything but certain.  Many medical conditions have varying outcomes.  Couple this fact with the fact that the defense will always find an expert who will testify that the outcome would not be any different even if the defendant had done more.  To simplify the concept of proximate cause, I explain to juries that the element of causation is established if the outcome would likely be more favorable if the defendant had not been negligent.  In other words, if the defendant had complied with accepted standards of medical care and maximized patient safety, proximate cause is proven if the patient would have likely avoided injury or death.

Note the prominent use of the term “likely” in this definition.  Under Ohio law, a patient must prove his or her case to a reasonable degree of medical probability.  This means “more likely than not.”  This is a different burden of proof than in criminal cases where proof of guilt must be proven beyond a reasonable doubt.

Again, juror misconceptions can skew results.  While the law only requires a plaintiff to prove the causation element to a probability, i.e., greater than 51% likelihood, jurors frequently require clear and convincing evidence.  This is often impossible due to the uncertainty of outcomes in medical care and the conflicting expert testimony that is present in every medical malpractice trial.  As a trial attorney who has tried over 100 jury trials, I realize that it is important to seek disqualification of jurors who are biased against the application of the law, educate the jury about the law at various times during the trial, and request that the trial judge clearly explain Ohio law to jurors.


The term “damages” refers to the harms and losses caused by a healthcare provider’s negligence.  Damages include loss of income and benefits, medical expenses, costs associated with living with a disability (e.g., handicap-accessible living accommodations and transportation), the value of lost services that the injured party is no longer able to provide to his/her household, loss of consortium, pain, suffering and emotional distress. In Ohio, caps apply to so-called “non-economic” losses such as pain, suffering and emotional distress.  Upon proof that the damages are ongoing or permanent, the injured party can also recover for future losses.  Economists and life care planners can be useful in estimating future damages.  When an act of medical malpractice results in death, the beneficiaries of the deceased individual’s estate can bring a wrongful death lawsuit.  The damages recoverable through a wrongful death lawsuit include mental anguish suffered by the beneficiaries, lost income suffered due to the premature demise of a breadwinner, and funeral and burial expenses.


How does a medical malpractice attorney decide whether to pursue a lawsuit?  There are a number of practical considerations involved.  First, I assess the likelihood of prevailing at trial.  In general, the Ohio Department of Insurance statistics show that 77% of medical malpractice lawsuits result in a verdict in favor of the defense (i.e., the hospital, doctor or nurse being sued).  This is troubling.  So, before proceeding with a lawsuit, I perform a detailed preliminary investigation, including a review of all relevant medical records and research into the applicable standards of care based on published guidelines and established medical principles.  Next, I have the records reviewed by one or more experts in a particular field of medicine.  Before filing suit, I carefully vet the case to ensure that there are no surprises down the road.

A second practical consideration is the extent of damages.  If a victim of a medical error recovers fully from his/her injuries, the damages are probably too minor to warrant the time and expense of medical malpractice litigation.  Typically, the damages have to be significant if not catastrophic to even consider pursuing a claim.  Exceptions to this general rule arise in situations where the act of negligence is particularly clear-cut or egregious such failing to account for all surgical supplies during an operation leading to sewing up a surgical instrument inside the patient (so-called “retained foreign object” cases), wrong-site surgery, an overdose of medication and prescription errors.

If you are interested in discussing your concerns about an unexpected healthcare-related injury or outcome, feel free to contact Mishkind Law today.  We practice throughout the State of Ohio.