Definition of Medical Malpractice

Definition of Medical Malpractice

In general, medical malpractice is an act or omission that a physician commits during the treatment of a patient, such that the act deviates from accepted practice norms in the medical community and causes injury to the patient. is a subset of tort law and deals specifically with professional negligence.

Elements of Medical Malpractice Case in New York

medical malpractice

Whenever a Bronx personal injury lawsuit begins, the attorney filing the case must plead certain elements that together constitute the alleged misconduct. All of these elements must be in the case’s fact pattern, or the court can dismiss the lawsuit for a failure to state a claim. There are four elements to a medical malpractice case in the State of New York.

Duty to the Patient

The party seeking relief for medical malpractice must first allege and prove that the medical professional owed a duty of care to the injured individual as the professional’s patient. Your attorney must prove the existence of the doctor/patient relationship to meet this element.

Breach of the Duty to the Patient

The second element you must prove is a failure to meet the duty to the patient, thus breaching that duty.

Your lawyer can prove breach of duty by demonstrating that the medical professional:

  • Failed to recognize or diagnose an illness
  • Failed to identify or treat an illness or injury properly
  • Made surgical errors
  • Failed to take or use the victim’s medical history
  • Failed to request or order necessary tests that could have explained the symptoms

Directly Causing the Plaintiff’s Injury

It is not sufficient simply to show that a preventable illness or injury injured the plaintiff. To prove causation, the plaintiff’s attorney must be able to demonstrate a direct link between the defendant’s breach of duty and the resulting injury or illness.

Actual Damages Caused by the Injury

Finally, to prevail in a medical malpractice case, the plaintiff must show that their injury or illness resulted in actual damages, which can be made whole by money damages. The money damages are required because tort causes of action, in general, are intended to make injured parties financially whole from the injury they suffered. Malpractice suits aim to achieve this goal for those who suffered an injury due to the failure of a medical professional.

Need for Expert Medical Witness

As a general rule, New York requires the testimony of a medical expert to establish the applicable standard of care in a medical malpractice claim. A doctor of the same type or specialty working in the same geographic region must explain the applicable standard of care.

The expert’s testimony will illustrate what a competent doctor in that place and with that specialty would have done under the same circumstances when following the appropriate standard of care. The expert’s testimony will consider the underlying issues of the case and what diagnostic tools were proper in this situation. The expert might also discuss the course of treatment that was appropriate, had the doctor met the proper standard of medical care.

The medical expert must also testify how the defendant's professional medical conduct violated the standard of care. The expert should then give their opinion on how the doctor’s failure to apply the correct standard of care injured the plaintiff.

Exceptions to Requirement for Expert Testimony

There are some exceptions to the requirement for expert medical testimony under New York law. The first circumstance is when the medical mistake is so blindingly obvious that the expert’s testimony is not necessary for the jury to understand the malpractice. An example of this kind of case is when the surgeon leaves an instrument behind in the patient.

In general, medical expert testimony will not be necessary when:

  • The medical provider had control over the item or situation that caused the injury, and
  • The injury could only have occurred as a result of the medical professional’s failure to meet the applicable standard of care.

If you work with experienced medical malpractice lawyers, they can review your case and tell you whether they think medical expert testimony is required.

Time Is of the Essence

New York State has a relatively short statute of limitations for filing a medical malpractice case. The general rule is that the medical malpractice action must be commenced within two years and six months of the act, omission, or failure that the plaintiff is complaining of or from the last treatment the plaintiff received in a continuous series of treatment for the same illness, condition, or injury.

There are some exceptions:

  • Misdiagnosis of Cancer - If your case involves a failure to diagnose cancer, the statute of limitations will begin running when you first learn of the failure to diagnose cancer properly. You have two years from that date to file a lawsuit. Special, general, and punitive damages may be available.
  • Foreign Object Left Behind - If your medical malpractice claim relies upon the discovery of a foreign object left in your body after a medical procedure, you must sue within the earlier of one year of the date you discovered the foreign object or within one year after you discovered facts that would lead a reasonable person to discover such foreign objects.
  • Infancy - The statute of limitations extends for those who are minors when the alleged malpractice occurs. Minors must file their malpractice actions within ten years of the date of the malpractice unless the misdiagnosis or foreign object extensions apply to the case.
  • Insanity - The statute of limitations does not run at all against an individual who is not sane. Any medical malpractice action involving an insane person must begin within two years and six months of the date the insane person is cured.
  • Wrongful Death - The statute of limitations for wrongful death in the context of a medical malpractice case is shorter than for the malpractice itself. You must file the wrongful death case within two years of the death of the deceased individual.

What Kind of Damages Can You Recover?

New York tort law generally recognizes two types of compensatory damages. These damages include out-of-pocket expenses resulting from your injury and are called actual damages. Compensatory damages also include the less easily quantifiable losses known as general damages.

Actual damages include things like:

  • Medical and hospital expenses, make sure to keep receipts and invoices
  • Lost wages, proved with W-2s and 1099s
  • Cost of assistive or rehabilitative equipment. More receipts.
  • Cost of assistive or in-home services, invoices, or receipts. Perhaps 1099s where you made the payment
  • The cost of rehabilitation services, invoices should reflect your costs
  • Cost of occupational and physical therapy; again, invoices can help.

In contrast, general damages include:

  • Pain and suffering, chronic pain and suffering can be life-altering
  • Mental anguish - mood disorders, especially depression, can be prevalent among med-mal victims.
  • Disfigurement or scarring - these long-term injuries impact the plaintiff’s ability to socialize and result in the loss of enjoyment in life and work
  • Future medical expenses, difficult to calculate but essential to your long-term recovery or adjustment to the results of the defendant’s medical malpractice
  • Loss of future earnings, the injuries suffered under medical malpractice may be so severe and life-altering that the plaintiff loses the ability to work at a prior occupation, or indeed any occupation at all. These futures lost earnings are compensable damages under a med-mal claim.
  • Loss of earning capacity
  • Permanency of the injury, a permanent and extensive paragraph, for example, can adversely impact the plaintiff in many ways - for example, when paralysis makes a return to a former lifestyle virtually impossible.
  • Loss of consortium or the benefits of a relationship, the loss of consortium may be a consequence of physical or emotional injuries that make it difficult for plaintiffs to interact with others as they did before the injury.
  • Loss of opportunity for enjoyment of life

Because damages, particularly general damages, can be subtle and difficult to quantify, retaining the services of a skilled medical malpractice attorney can make all the difference in achieving a fair settlement that truly makes you whole. 

In addition, under the right facts and circumstances, you may also be entitled to punitive or exemplary damages. Punitive damages are not intended to make you whole; rather, they are awarded as a punishment for the wrongdoer and as a warning to those who might engage in the same misconduct.

To recover punitive damages, you must show that the defendant’s conduct was intentional, reckless, or wanton. Such damages are usually only awarded where the defendant’s conduct was so egregious that a punitive award seems necessary to deter the wrongdoer from future misconduct. New York does not cap punitive damages.

Similarly, the issue of informed consent can impact the damages that a victim can recover in a medical malpractice case. Hospitals and doctors work so hard to ensure that you give your informed consent to their intended procedures because, without that consent, the doctor may be liable for wrongfully touching or medically assaulting the patient.

To prove that informed consent existed, the hospital may provide evidence of written or verbal consent to the challenged procedure. In truly life-threatening situations, consent for necessary medical care may not be necessary. Consent can also be applied where the patient allows a medical procedure to go forward without objecting to it. Finally, if the plaintiff can prove that the medical professional promised but did not achieve a particular medical result in the case, damages may include the value of the unsuccessful treatment in its entirety.

When Should You Contact an Attorney?

As you saw above, the time to file a medical malpractice lawsuit in New York is short. In addition, med-mal cases are complex and often require the testimony of a medical expert. Because your time is short and your case involves a lot of parties and even more insurance companies and their lawyers, you should involve experienced and knowledgeable medical malpractice attorneys in your case as soon as you can.

Many believe that New York’s medical malpractice rules and regulations lean toward protecting medical professionals. Because of the potential bias in the rules, you should involve your lawyer earlier than later.

In a relatively short time, your attorney must review your case and all the evidence supporting it, including all of your medical records that may take time to obtain, let alone review. The attorney must then determine whether the available evidence supports the required elements of medical malpractice, as well as the likelihood of needing and obtaining expert medical testimony.

If your claim requires it, your attorney will also be searching for an appropriate medical expert to testify on your behalf. As is true of many professions, doctors are often reluctant to testify in such cases, making obtaining the required testimony even harder to get.

At the same time, your attorney will be engaging in negotiations with insurance companies and hospital management in an attempt to settle your case. There will likely be multiple lawyers and multiple insurance companies involved in those negotiations. The negotiations may also feature certain officers of the hospital who investigate claims involving the hospital’s emergency room and other high-risk practices.

During those negotiations, your attorney will also be protecting you from unwanted attention from insurance company lawyers. No insurance company attorney ever lost a job for settling a case in an amount that was too small. Remember, of all the attorneys in the case, only your attorney is acting in your interests. The defendants’ attorneys are looking out for them, and the insurance company attorneys only want to pay out as little as possible.

Contact a Bronx Medical Malpractice Attorney Today

As you have seen, your medical malpractice case is probably complicated and in need of professional assistance. We can assist you in achieving the best possible result for your or your loved one’s injuries. Contact a Bronx medical malpractice lawyer to discuss a possible case.

Why Hire an Experienced
Attorney Like Ivan Diamond

If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

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If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

Someone who understands the tactics insurance companies and opposing lawyers sometimes use to avoid liability and paying settlements.

Insurance adjusters, in particular, know that you’re going through a difficult time. They may try to take advantage by offering you a lowball settlement, hoping you’ll jump at quick money before you talk to a lawyer. Don’t help them out. Instead, let an experienced attorney handle the negotiations.

The same goes for preparing your claim. A skilled, knowledgeable litigator like me understands what facts and arguments are most important to prove your claim to a judge and jury, if it comes to taking a case to trial. I know how to guide my clients through depositions, discovery, and efforts by opposing lawyers to trap them into saying things that might undermine their case.

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