Jurisdiction - A malpractice lawsuit is a civil proceeding. It is adjudicated in a civil court and governed by substantive and procedural laws. One of three court systems may have jurisdiction over your case: your state court, the federal court, or the courts of another state. Here is how that jurisdiction is obtained:

State Court. A malpractice suit against you is most likely to be filed in the state court of the county where you practice or live. If the treatment took place in a different county, the suit may also be filed there.

Other venues are possible in cases with more than one defendant. A suit may be filed in the home county of any one of them. If they are partners, the jurisdiction can belong to any county containing a partnership office or a hospital at which one or more of the partners practice.

Federal Courts. A malpractice case may be heard by a federal court if: 1) the plaintiff is a citizen of one state and no defendant is a citizen of the same state; 2) if a defendant is not a US citizen and none of her co-defendants are citizens of the state where she practices; or 3) if the malpractice case is joined to a federal action (i.e. pendant jurisdiction), such as a case brought under the Emergency Medical Treatment and Active Labor Act (EMTALA). Even if heard by a federal court, a case will nonetheless be tried according to state law.

Out-of-State Court. You can be sued in another state if you: 1) treated the plaintiff there; 2) regularly practice there; 3) live in that state; or 4) maintain an office within it. You must be represented by an attorney licensed to practice in that state.

What must be proved against you? Our legal system is an adversarial system. Its function is to provide an orderly arena in which two opposing sides can present conflicting interpretations of the facts and ask a jury to decide which is more probably true. In order to win a verdict of malpractice, the plaintiff’s attorney must persuade the jury of three things:

Injury - First, the plaintiff must prove that the plaintiff was, in fact, injured. This must be a tangible, physical injury. In addition to a physical injury, she may claim a non-economic damage, such as “pain and suffering” or “loss of consortium (i.e. conjugal fellowship of husband and wife) .” The plaintiff may not claim mental damages alone, without physical injury. Remember, no harm - no foul!

Negligence. As the judge’s instructions to the jury explain, the plaintiff’s counsel must prove that you had a ‘duty of care’ to the patient, and that there was a breach in the standard of care. Duty + breach = negligence. The jury instructions define negligence as follows: In treating a patient, a doctor who holds himself/herself out as a specialist and undertakes service in a particular branch of medical, surgical, or other healing science, must possess and apply the knowledge and use the skill and care which a reasonably well-qualified physician in the same field, practicing in the same locality, or in similar localities, ordinarily would use in similar cases and circumstances. A failure to do so is a form of negligence called malpractice.

This definition leaves considerable room for interpretation, particularly in determining what constitutes a “similar” locality, case, or circumstance. The jury must decide what should be expected of a “reasonably well-qualified” practitioner and whether or not you satisfied such expectations. Their sole basis for this decision must be testimony given by physicians called as expert witnesses. In theory, this allows the jury to judge you according to the standards of your own profession. In practice, it requires them to choose between the standard espoused by your expert and the plaintiff’s.

Proximate Cause. Finally, plaintiff’s counsel must demonstrate that your negligence was the proximate cause of the injury. Your actions must be a cause of the plaintiff’s injury. That is, any cause which, in the natural or probable sequence, produced the injury complained of. It need not be the only cause, or the last or nearest cause. Another way to look at proximate cause: In the mind’s eye, at the moment in time the breach occurs, the injury was reasonably foreseeable.

The plaintiff’s attorney must persuade the jury that your actions or failures were, indeed, one cause of the injury, even if not the sole cause or the most immediate one. The concept of proximate cause is nicely demonstrated in the following case.

Dr. Heavrin misread a lab slip and told Ms. Hensley that she had syphilis. Mr. Hensley was shocked at the test results and his wife’s apparent infidelity. He struck his wife in the jaw, fracturing it in two places.

The Hensleys sued the physician for negligent diagnosis, resulting in the fractured jaw. The trial court said, “The husband’s action in striking the jaw was an unforeseeable intervening cause of her injuries.