If you've been injured by a health care provider's negligence in Arkansas, you might be considering filing a medical malpractice lawsuit. If so, it's a good idea to get familiar with the different state laws that could affect your case.

Unlike most states, Arkansas hasn't passed many tort reform-style laws that present procedural hurdles for a medical malpractice plaintiff (the injured patient who is filing the lawsuit) to jump through at the outset of the case. But the state has spelled out exactly what's expected of a plaintiff when it comes to holding a health care provider liable for a treatment error, and in order to get fair compensation for all losses arising from the provider's mistake. In this article, we'll summarize those key Arkansas laws.

A Medical Malpractice Plaintiff's Burden of Proof in Arkansas

In an Arkansas medical malpractice lawsuit, unless the health care provider's mistake "lies within the jury's comprehension as a matter of common knowledge," the plaintiff (usually through his or her attorney) will need to retain a qualified expert witness to help prove the care provider's liability. That's according to Arkansas Code section 16-114-206.

So, what does it mean that a mistake "lies within the jury's comprehension as a matter of common knowledge"? It simply means that the jury can likely tell that the care provider did something wrong, without having to resort to special knowledge or experience. For example, if a surgeon operates on the wrong body part, or leaves a medical instrument inside the patient, it's almost certainly within the jury's "common knowledge" to understand that the health care provider committed negligence.

But, for cases that require something beyond common knowledge, section 16-114-206 says that the plaintiff has the burden of establishing, through expert testimony from a medical care provider "of the same specialty as the defendant":

• the type and level of care that was appropriate under the circumstances, including "the degree of skill and learning ordinarily possessed" by health care providers in a similar practice and in the same locality
• that the defendant medical care provider failed to provide care in accordance with that standard when treating the patient, and
• that as a "proximate result," the plaintiff suffered injuries that would not otherwise have occurred.

Learn more about proving medical malpractice.

Medical Malpractice Lawsuits Based on "Informed Consent" in Arkansas

In some situations, a medical malpractice lawsuit is based on the specific legal argument that the health care provider failed to obtain the patient's "informed consent" before carrying out a procedure or course of treatment.

"Informed consent" involves a care provider's responsibility to provide all essential information to the patient when it comes to proposed care, including a description of the action, the purpose of the action, the desired outcome, the risks, the alternatives, and the likelihood of success. Learn more about informed consent and medical malpractice.

Arkansas Code section 16-114-206 says that an injured patient making an "informed consent" claim has the burden of showing that:

• the treatment, procedure, or surgery was performed under circumstances that did not amount to an emergency
• the defendant health care provider did not supply the type of information that would customarily have been given to a patient in the plaintiff's position "by other medical care providers with similar training and experience" in the same or similar locality where the defendant practices.

Section 16-114-206 lists a few questions as "material" to the question of whether informed consent was obtained (the jury could consider these questions, in other words, if the case went to trial):

• whether a person of ordinary intelligence and awareness, in a position similar to the injured patient's "could reasonably be expected to know of the risks or hazards inherent" in the treatment or procedure
• whether the injured patient did actually know of the risks inherent in such treatment or procedure
• whether the injured patient "would have undergone the treatment, procedure, or surgery regardless of the risk involved"
• whether the injured patient "did not wish to be informed" of the risks of the procedure, and
• whether it was a reasonable decision on the defendant health care provider's part to "limit disclosure of information," because that disclosure might very well "adversely and substantially affect the injured person's condition."

If you've got questions about filing a medical malpractice lawsuit in Arkansas, an experienced attorney will have the answers. Learn more about Choosing the Right Medical Malpractice Lawyer.