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If a doctor, hospital, dentist, or other health care provider makes a mistake, can you sue him or her? Not necessarily.

Medical malpractice involves matters of medical science and occurs when “those engag[ed] in the practice of the healing arts,” 76 O.S.2001, § 20.1, fail to “exercise ordinary care in delivery of professional services” when a duty is owed the plaintiff. Franklin v. Toal, 2000 OK 79, ¶ 14, 19 P.3d 834, 837.

In Oklahoma, the elements of a medical malpractice claim are: (1) a duty of care owed by the defendant to the plaintiff, (2) breach of that duty, (3) an injury, and (4) causation. Jennings v. Badgett, 2010 OK 7, 230 P.3d 861.

1. Duty of Care. The element of duty requires a physician-patient relationship. Jennings, supra. An action for malpractice is based on an employment contract. Funnell v. Jones, 1985 OK 73, ¶ 5, 737 P.2d 105, 107, cert. denied, 484 U.S. 853, 108 S.Ct. 158, 98 L.Ed.2d 113 (1987). To receive the professional services, the patient agrees to be treated, Scott v. Bradford, 1979 OK 165, ¶ 8-12, 606 P.2d 554, 556-557, and if the patient is unable to give consent, the consent may be implied. Rolater v. Strain, 1913 OK 634, 39 Okla. 572, 137 P. 96. Otherwise, a physician may be liable for assault and battery. Scott, 1979 OK 165 at ¶ 8-12, 606 P.2d at 556-557. Because in Oklahoma a physician is not under a general duty to provide professional services to others, see Jackson v. Mercy Health Ctr., Inc., 1993 OK 155, ¶ 5, 864 P.2d 839, 842, the physician must consent to provide the services. The agreement of the physician to treat and the patient to receive treatment is the basis of the employment contract.

2. Breach of Duty of Care. Generally, expert testimony that a doctor or hospital deviated from the standard of care is necessary to establish causation in a professional liability case. See White v. Burton, 1937 OK 381, 71 P.2d 694; Harder v. F.C. Clinton, Inc., 1997 OK 137, 948 P.2d 298. The rationale for this rule is that a trier of fact must have sufficient technical and scientific evidence at his or her disposal to answer scientific or technical questions of fact. However, when a doctor or a hospital’s lack of care has been such that common knowledge or the experience of laymen is extensive enough to recognize or infer negligence from the facts, expert medical testimony is not required. Boxberger v. Martin, 1976 OK 78, 552 P.2d 370. Expert medical evidence is not required to establish the cause of an objective injury where there is competent evidence, without such testimony, to establish the cause with reasonable certainty.

3. An Injury. This is self-explanatory; the plaintiff must have been damaged by the defendant’s negligence. As a practical matter, a trivial injury may not be worth pursuing because the damages may not justify the expenditure of money for court costs, expert witness fees, and the like.

4. Causation. Plaintiff cannot recover for negligence unless it was the proximate cause of the injuries for which the plaintiff seeks compensation. Jones v. Mercy Health Center, Inc., 2006 OK 83, 155 P.3d 9.The issue of causation involves whether a reasonable person could believe that the defendant’s negligent conduct was a cause of the plaintiff’s injury. McKellips v. St. Francis Hosp., Inc., 1987 OK 69, ¶ 10, 741 P.2d 467, 471. “Absolute certainty is not required.” McKellips, 1987 OK 69, ¶ 11, 741 P.2d at 471. It must be
established by expert testimony. Jones, supra.

Remember, this is not legal advice. We probably don’t even know you, and besides that, we generally charge for legal advice.