0:01

So I would like to take a minute

0:02

and talk about the degree of proof required.

0:06

And as I've stated before, it is me

0:09

or the plaintiff that has to meet the burden

0:12

of proof in going forward.

0:14

There are some exceptions, for example,

0:16

if a counterclaim is made, these types of things

0:18

that can alter that a bit.

0:20

But in your general straightforward medical malpractice

0:23

case, the plaintiff has the burden of proof moving forward.

0:27

So we touched briefly on civil versus criminal lawsuits

0:31

before, and as you've probably heard, and, and you're,

0:34

and you are aware, in a criminal case, the standard

0:38

of care is very high.

0:40

It is essentially in order to find the defendant guilty,

0:44

it is a standard that is beyond a,

0:47

beyond a reasonable doubt, that it's just almost impossible

0:51

to say this person didn't commit this crime.

0:54

The standard in a medical malpractice case in the civil case

0:59

is far different.

1:01

We call it the, essentially the

1:03

preponderance of the evidence.

1:05

So what does that mean?

1:07

And what, how we explain it typically

1:10

to a jury is simply saying, imagine the scales of justice.

1:15

It is the plaintiff's responsibility to prove their case

1:19

by tipping that scale ever so slightly.

1:23

Just moving, moving it just a little bit

1:27

that the evidence shows that more likely than not the

1:32

defendant was negligent.

1:34

We really don't use the terms guilty

1:37

or innocent when we're doing a civil lawsuit

1:39

or a, a medical malpractice negligence case like this.

1:43

It's whether or not the physician was negligent.

1:46

Um, and that's the standard of care.

1:48

So we're just looking to tip that scale ever so slightly

1:53

and be aware that it is my burden of proof

1:56

and that's why the process moves along the way it does,

2:00

and we'll get into more of that later in another talk.

2:04

Kelly, this also refers

2:06

to the expert witness's opinions.

2:10

The expert witness does not have to be absolutely certain

2:15

with regard to their opinion about something.

2:18

The expert witness is held to the same degree of proof

2:22

that more likely than not the behavior was

2:26

a deviation from the standard of care.

2:29

That that is correct Dave.

2:31

And the, the issue that, um, I discuss with my experts

2:35

in having them testify and,

2:37

and oftentimes comes up at trial.

2:40

Um, and there are, there are some exceptions,

2:44

but in general, the expert witnesses opinion

2:48

and even your opinion

2:50

as the defendant testifying about whether

2:52

or not you breached the standard of care is

2:56

the question will be asked in your opinion,

2:59

to a reasonable degree of medical probability

3:02

or a reasonable degree

3:03

of medical certainty depending on the state.

3:06

The question will be asked, do you believe then

3:09

that the physician violated the standard of care,

3:11

breach the standard of care?

3:13

So that's a great point.