Why you need to know the four elements of negligence for your case

In order to evaluate a medical malpractice case, there needs to be a solid understanding of the four elements of negligence. The term “medical malpractice” encompasses negligence on the part of any healthcare professional to a patient. In addition to medical malpractice by physicians, professional negligence also includes nursing malpractice, dental malpractice, pharmacy and chiropractic malpractice.

Professional negligence claims fall under the category of civil law. Civil law encompasses disputes between individuals or organizations in which compensation is sought for harm resulting from negligent conduct. This is opposed to criminal law, which regulates social behavior that endangers the health, safety, and welfare of others and punishes the defendant for violating these laws.

To prevail in a professional negligence claim, there are four elements of the claim that must be proven. These four elements are duty, breach of duty, damages and causation.

As the initiator of the lawsuit, the plaintiff has the burden of proving all four elements by a preponderance of the evidence. Note that this standard is less strict than in criminal cases, where the claims must be proven beyond a reasonable doubt. In civil cases, the standard of proof is “more likely than not” or “greater than a 50% chance” or “to a reasonable degree of probability.”

While the plaintiff must prove all four elements to prevail, the defense only has to raise enough doubt about any one of the four elements to succeed. If the jury or other finder of fact believes that the plaintiff has not met the burden of proof for any one of the four elements, they must find for the defense.

Tort law falls under the umbrella of civil law. A tort is a wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs, which result in harm. Medical negligence is one example of tort law. Others include premises liability, motor vehicle accidents, product liability and environmental pollution.


Damages are any loss, detriment or injury that directly results from a breach in the standard of care. The term “damages” also refers to the monetary compensation awarded to the plaintiff for proven or established injuries. There are three categories of damages, and money can be awarded to the plaintiff for damages in any of these categories. The three types of damages are economic, non-economic, and punitive.

Economic damages are also referred to as “special damages,” and they are the out-of-pocket expenses incurred by the plaintiff that are related to the claims in the case.

For example, economic damages may include medical expenses such as hospitalization, surgery, doctors’ appointments, physical therapy, other treatment, co-pays, assistive devices, and other equipment.

Economic damages may include mileage, toll road fees, hotel expenses, etc. when traveling to see a specialist. Economic damages may include household help or, in the case of wrongful death, funeral expenses. Lost wages and loss of earning capacity are also examples of economic damages.

Non-economic damages are also referred to as “general damages,” and these are the intangible injuries suffered by the plaintiff. Examples of non-economic damages include pain and suffering, mental anguish, embarrassment, disfigurement, functional limitations, and loss of enjoyment of life. Non-economic damages can also include loss of chance, which is a reduction in the plaintiff’s “chance,” or opportunity, for a more favorable outcome due to the negligence of the defendant.

Non-economic damages may also include loss of consortium. This is a damage claimed by the plaintiff’s significant other for deprivation of the benefits of a family relationship, including intimacy, affection, companionship, and sexual relations.

Punitive damages, also known as exemplary damages, are monetary compensation exceeding general and special damages. They are typically awarded when the defendant’s actions are found to be egregious or grossly negligent.

Gross negligence is behavior that falls very far below the standard of care; it is blatant and voluntary carelessness, indifference, and disregard for the safety or lives of others. Punitive damages exceed the amount intended to compensate the plaintiff for the harm suffered. These damages can be difficult to prove in professional negligence cases and may be capped in many jurisdictions. Punitive damages are intended to punish the defendant, set an example, and deter future behavior considered “outrageous.” Most jurisdictions will often not even consider such a motion until all the facts have been set forth and even if allowed, caps on the amount awarded are often in place.


Causation is the connection between medical carelessness, breach of duty, and patient injury or damages.

To understand causation the LNC must think carefully about the following questions: Did the negligence cause the injury or damage? Could it have been caused by something or anything else? Did the negligence cause all or only part of the plaintiff’s injury? If only part, which part?   Is there any reason why the result would or could have been the same absent the negligence? In death cases, would the plaintiff have died of his disease absent any negligence? If so, what are the statistics on morbidity and mortality for that specific condition?

During the course of a case investigation, as new facts are discovered the LNC should rethink causation and how the new information or new defense argument fits the existing causation theory.  Deep understanding of the four elements of negligence is very important as ALN updates cases with newly obtained information. It is critical to have a legal nurse on your team who understands how to spot inaccuracies in medical records that can affect case outcomes, and can determine if the case meets the four elements, which constitute negligence in a Medical Malpractice case. Contact us today to learn more how we can help.