How Do I Prove Medical Negligence?

Medical Malpractice

You place a lot of trust in your doctor and medical staff to provide the highest level of care and treat your condition. However, doctors, nurses, and other healthcare providers can deviate from accepted medical standards and cause you more harm than good.

If you suffered injuries or losses from a healthcare provider’s negligence or wrongdoing, you could obtain compensation, but you need to understand how to prove medical negligence and the process of obtaining the compensation you need.

You also need to reach out to an experienced medical malpractice attorney in Virginia who can explain your rights, advise you of your options, and fight hard to help you get the money you deserve.

Proving Medical Malpractice in Virginia

Attorney to Prove Medical Malpractice in VirginiaVirginia defines medical malpractice as any tort action or breach of contract arising from negligent, substandard, or erroneous healthcare that caused injuries or wrongful death to the patient.

Healthcare providers can include virtually any healthcare professional, but they usually do not include unlicensed physicians or laboratories. Doctors, nurses, hospital staff, private and state-owned healthcare facilities, healthcare corporations, and nursing homes fall under the state’s legal definition of healthcare providers.

Others include licensed therapists and counselors, chiropractors, psychologists, dentists, and other specialized fields, as well as clinical social workers, emergency technicians, and healthcare maintenance organizations. To find out if your healthcare provider falls under the legal definition, you need to consult an attorney.

Medical malpractice claims rely on the concepts of causation and liability and whether a healthcare provider delivered substandard care or services. Simply put, the healthcare provider had a duty of care to you and breached that duty through their actions or inaction. That breach caused your injuries, which caused your damages or losses.

To file a viable medical malpractice claim and pursue compensation, you need to prove:

  1. The healthcare provider violated a recognized and accepted standard of care. All medical providers must follow accepted standards of practice. If they fail to uphold those standards, they are guilty of negligence.
  2. Their violation of standards of care led to your injuries. If your injury was a direct result of their negligence, you likely have a claim for medical malpractice. However, if you did not suffer injuries, you cannot legally claim medical malpractice.
  3. Your injuries caused you significant damages or losses. Damages can be both economic, such as your medical bills and lost wages, and they can be non-economic to cover things like pain and suffering, loss of consortium, and disfigurement.

Establishing negligence can be challenging because so-called “innocent” mistakes do happen. The difference between a mistake and malpractice lies in the deviation from the accepted standard of care. For instance, many surgeries have an inherent level of risk for injury. Surgeons should always discuss the risks with their patients, and patients usually must sign waivers beforehand confirming that they were told of the risks and understand the implications.

As such, malpractice claims rely on expert testimony from other physicians or professionals who can assess whether the healthcare provider deviated from the accepted standard of care. If they can show your physician deviated from that standard or failed to meet the standard, and that, in turn, led to your injuries and losses, you likely have a viable claim for medical malpractice.

Your attorney can call expert witnesses to testify that your healthcare provider failed to deliver the accepted standard of medical care and is therefore liable for your injuries and losses.

What Does the Medical Malpractice Claim Process Involve in Virginia?


The first step in a medical malpractice claim is to review the relevant medical records. Your attorney can request medical records from all parties involved for you, and your doctor or hospital will have to provide the records within three business days of receiving the request. Nursing homes must respond within two business days.

Your attorney will then review the records to determine whether they think you have a viable claim. If so, they will then hire a medical expert to review the medical records and determine if they believe the healthcare provider was negligent in providing an accepted standard of care. The medical expert is usually a licensed physician who works in the medical field or specialty involved in your case (like oncology, surgery, and cardiology.)

Testimony from a medical expert is vital to any medical malpractice case. By law, they have to certify their opinion in writing if they find your healthcare provider deviated or failed to uphold acceptable standards of care, and that deviation was the proximate cause of your injury or wrongful death.

Filing Suit

After the expert certifies your case qualifies as medical malpractice, the next step is to file a lawsuit in civil court—technically called a complaint. Your attorney will draft the complaint, and it will include all the facts and evidence to support allegations of negligence. The sheriff will deliver a copy of the complaint to the defendants, and they will have less than one month to respond.

Discovery and Depositions

Both parties will go through written discovery, where both attorneys will request pertinent documents and gather evidence that supports their cases. They will also question witnesses and other relevant parties, and all parties involved, including you, will have to answer questions under oath. Also, either party may question the opposing party’s witnesses under oath to obtain sworn depositions.


Both sides may voluntarily request mediation or arbitration to settle the matter outside of court. The court itself may also order mediation, where you and the other party try to negotiate an acceptable settlement.


Edward McNelis - Virginia Lawyer for Medical Malpractice
Edward McNelis, Medical Malpractice Attorney

If you cannot reach a settlement or mediation is not an option, you will have to take your case to court and have a jury decide the matter. Proving medical negligence is challenging because of the high standards you must meet, so you need an assertive and aggressive medical malpractice attorney on your side to help sway the jury’s decisions in your favor.

Additionally, you only have two years in Virginia to file your medical malpractice lawsuit with the court, so you need to act quickly to ensure you can get the compensation you deserve. Certain exceptions may extend the statute of limitations, but you still need to contact an experienced Virginia personal injury attorney immediately for help.