When we have a medical condition that needs treatment, we seek the advice of a professional.Most of us do not have the knowledge or skill to diagnose or treat any but the most basic conditions.When we put ourselves in the hands of a doctor, we put our trust in his or her hands, as well as our lives and our well-being.
Given the high level of trust and confidence we place in our doctors, it is not surprising to learn that they are held to a high standard of care.When that standard is violated, the results can be tragic.When a doctor commits malpractice on you, you need a qualified attorney to make sure the doctor is held accountable for his or her negligence, and to ensure you are fully compensated for your injuries.
To prove a case of medical malpractice, the following elements must be present:
A duty of care owed to the patient
A breach of that duty
An injury caused by the breach
Duty of Care
Once a doctor-patient relationship is established, the doctor owes a duty of care to the patient.While members of the general public are held to an ordinary standard of care in their daily conduct, professionals such as doctors are held to a higher standard of care.Medical doctors are expected to possess and exercise the skill, knowledge and care of other medical doctors in similar circumstances.
Breach of Duty
A breach can be an error or an omission.For instance, there could be a misdiagnosis leading to improper treatment, or a missed diagnosis leaving an important medical condition to go undiscovered and therefore untreated.
Other common types of malpractice include:
Surgical mistakes
Medication errors/incorrect prescriptions
Medical instruments, sponges, or other foreign objects left inside the patient following surgery
Performing the wrong surgery or performing surgery on the wrong body part by misreading the patient’s chart
Errors in prenatal diagnostic testing
Performing below the accepted treatment standard or performing the treatment incorrectly
Continuing a treatment that has been shown to be ineffective
Failing to inform a patient of treatment options or to obtain informed consent before treating
Injury Caused by Breach
Even though it can be shown that the doctor or medical provider breached a duty as described above, it must still be proven that the medical provider’s negligence was the legal and factual cause of the patient’s injuries.
First, the action must be a cause in fact of the injury.In other words, it must be shown that the injury would not have occurred but for the doctor’s negligence.This element may seem pretty straightforward.However, the causes of medical conditions and injuries can sometimes be quite complex and difficult to understand, and the employment of expert witnesses is often required to argue and explain how the patient’s injuries resulted from the doctor’s malpractice.
Even if cause in fact is shown, the negligence must also be the legal or proximate cause of the injury.Legal causation is a legal principle designed to limit or cut off liability based on policy considerations.For instance, a truck drops a load of bananas on the roadway.While the owner of the truck may be liable if a car behind the truck skids on the banana peels and has an accident, would the owner also be liable to a driver who took an alternate route because of the banana spill and had an accident somewhere along the alternate route?While the driver would not have taken that alternate route and had that accident but for the banana spill, at some point the law steps in and says the truck owner should not be liable for every injury which arguable derives from its negligence, however remotely.
While the above example may seem improbable, there are many times in which intervening or superseding factors are argued as a defense to cut off the liability of someone who has injured another.As you can see, legal causation is a complex yet important element requiring knowledge and skill in the practice of law to be interpreted and applied correctly to your particular situation.
Damages
In order to recover for medical malpractice, you must show that you were injured by the malpractice.The compensation you seek to recover is known as damages.There are many different types of damages.First of all, you should be able to recover for any economic loss you suffered due to the malpractice.Economic damages in this context may include additional medical expenses for further treatment or therapies, or lost wages from missed work.You may also be entitled to recover for other elements of your injury, such as the pain and suffering caused by the injury, as well as emotional distress caused by the incident.If the doctor’s actions were particularly egregious, exemplary or punitive damages may be in order to punish the doctor or serve as an example to others in the field.Finally, in many instances you will be able to recover the attorney’s fees and costs you incurred in pursuing your medical malpractice case.
Potential Defendants
Theories of liability can extend beyond just a doctor, nurse or other medical provider.Other entities which may be held liable for medical malpractice include:
Hospitals or other facilities may be liable for the negligence of their employees.A crucial point is whether the doctor was an employee or independent contractor of the hospital.Some doctors are not employed by hospitals but have “privileges” to perform surgeries or other services there.It takes a skilled and knowledgeable attorney to determine whether the hospital can be held liable as well as the doctor.As more and more procedures are moved out of hospitals and into freestanding ambulatory surgery centers and other facilities, this issue becomes increasingly central to an injured patient’s full legal recovery.
Health Maintenance Organizations (HMOs) can also be held liable for medical malpractice.This theory is often pursued when an HMO refuses to pay for necessary tests or treatment, and the patient is ultimately harmed by the HMO’s actions.
Malpractice Defenses
The most common defense to a claim of medical malpractice is that the patient’s own negligence caused or contributed to the injury.It is important that you fully disclose your medical history and any conditions which may complicate the doctor’s treatment of you.Also, it is incumbent upon you to take action to mitigate your damages and not do anything that would make your injury worse.“Assumption of the risk” is a commonly-raised defense in negligence cases.In the medical arena, the doctor may argue that you gave an informed consent to the procedure and therefore were informed of and assumed the risks of the operation.However, it is unlikely that you were informed of and assumed the doctor’s negligence as a risk of the procedure.
Finally, it is crucial to be aware of the statute of limitations on malpractice cases in your state.In New York, medical malpractice cases generally must be brought within 2 ½ years of the date on which the act or omission which caused the injury occurred.In some cases, this period is extended, depending upon the nature of the malpractice.Your entire suit could be barred if you wait too long to institute an action.It is imperative for your recovery that you contact an attorney as soon as possible after you discover that you were injured by medical malpractice.
Medical cases are complex, and holding a doctor accountable for negligent malpractice is never a simple and straightforward matter.The Law Firm of Leandros A. Vrionedes, P.C. has successfully represented plaintiff’s in medical malpractice cases, obtaining favorable settlements or significant verdicts for numerous clients.If you have been the victim of medical malpractice in New York City or surrounding areas, contact the Law Firm of Leandros A. Vrionedes to get started on the road to recovery.
