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What Constitutes A Medical Malpractice/Negligence Suit?

Mar 10, 2017

What Constitutes Medical Malpractice?

What Constitutes A Medical Malpractice/Negligence Suit?

Medical malpractice, which is also known as medical negligence, takes place when a physician, health care professional, hospital, or health care facility does not care for a patient in accord with accepted standards of the medical profession, if the patient becomes injured or ill under such care, or if the patient's condition or illness worsens as a result of the alleged inappropriate care or negligence.

Medical malpractice also involves the defining of the elements upon which the success of a medical malpractice case typically centers. These elements are what are known as the "medical standard of care" and the provider's breach of that standard (also known as medical negligence). The plaintiff's medical expert typically provides the key evidence through detailed testimony that involves the plaintiff's condition, the appropriate course of treatment, the appropriate diagnosis methodology, and what the doctor did or did not do at every phase of care.

The injured party must also prove that the provision of care was not appropriate. This means that decisions, treatment, diagnosis, by the physician fell below the accepted medical standard of care and that there may have been a failure to treat and that the physician neglected to act as a physician in that medical specialty should act. This is considered a "breach" of the standard of care that comprises "medical negligence," according to the law and,. As a result of these behaviors, the patient was injured, became ill, or the patient's condition or injury became worse. The case must also prove that a causal connection existed between the care provider's medical negligence and the harm that the patient experience and that quantifiable harm or damages to the patient resulted.

Under New York Medical Malpractice Law, individuals who have valid claims of medical injury may pursue compensation from doctors, hospitals, and other medical personnel or facilities that are allegedly responsible for the patient's injury. New York personal injury law details the provisions for what damages may be claimed in each case, including medical expenses, pain, suffering, and lost income.

To prove that medical malpractice occurred, the plaintiff must be able to show the following:

A doctor-patient relationship existed: The injured party must prove that he or she was under the care of a physician and there was a doctor-patient relationship between the plaintiff and the doctor being sued. In other words, the plaintiff hired a doctor and that doctor agreed to be hired by the plaintiff. Overheard medical advice or advice given outside of a doctor-patient relationship is not cause for a medical malpractice lawsuit.

The doctor was negligent regarding the plaintiff's care: Being unhappy with treatment or results does not mean that the treating physician is liable for medical malpractice. The doctor must be proven negligent in association with the plaintiff's diagnosis or treatment and must be shown to have caused the plaintiff harm in a way that a competent doctor, under the same circumstances, would not have caused. A physician's care need not be the best care available; however, the physician must be "reasonably skillful and careful." Typically, the plaintiff must present a medical expert during the course of the lawsuit to discuss what the appropriate medical standard of care is for the injury involved and to show how the physician or provider deviated from that standard.

The doctor's negligence caused the injury to the plaintiff: Medical malpractice cases often involve patients who are sick or injured prior to the alleged malpractice, which leads to a question of if the doctor's treatment or diagnosis—for example, negligent or not—caused the plaintiff harm. The patient must show that it is "more likely than not" that the doctor's incompetence directly caused the injury, which typically involves medical expert testimony to confirm that the doctor's negligence led to the injury.

The injury led to specific damages: The patient must be able to show that he or she suffered harm. Even if it is clear that the doctor performed below the expected standards in his or her field, the patient is not able to bring a lawsuit for malpractice against the provider if the patient did not suffer harm.

Types of Medical Malpractice and Other Legal Issues Involving Medical Malpractice

Types of Medical Malpractice

Examples of medical malpractice include

  • Failure to diagnose
  • Failure to inform the patient of the risks of a specific procedure
  • Failure to monitor
  • Improper treatment
  • Injury during birth, to mother or child
  • Misdiagnosis
  • Prescription errors
  • Surgical errors

Sometimes in medical malpractice lawsuits, a doctrine known as res ipsa loquitur (the thing speaks for itself) is used when injuries cannot have occurred without the negligence of the doctor or provider. For example, the plaintiff schedules surgery for hernia repair and the surgeon removes the gall bladder. Other examples involve the plaintiff undergoing surgery and a surgical implement is left in the plaintiff's body or a plaintiff is being operated on to remove the left foot and the right foot is amputated.

In these types of medical malpractice cases, instead of an expert witness, the plaintiff's attorneys will seek to show that the accident that caused the harm could not have occurred in the absence of negligence, that the equipment or conduct that led to the plaintiff's harm was under the physician's or physician's team's control at all times during the procedure, and that the plaintiff did not contribute to the injury with his or her behavior.

Plaintiffs should seek immediate medical attention if medical malpractice or negligence is suspected. Plaintiffs should also document the claim and consult with knowledgeable personal injury attorneys who are able to discuss matters such as statute of limitations and any special requirements.

Parker Waichman LLP has decades of experience representing personal injury victims. The firm continues to offer free legal consultations to individuals with questions about filing a medical malpractice lawsuit. Patients may bring lawsuits over physical pain, mental anguish, additional medical bills, lost work, and lost earning capacity.

Filing a Medical Malpractice Lawsuit

If you or someone you know is interested in filing a medical malpractice lawsuit, ontact the personal injury attorneys at Parker Waichman today. For more information call 1-800-YOURLAWYER (1-800-968-7529).


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