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How does a medical malpractice case work?

Patients may file a medical negligence or malpractice lawsuit in New York when they have suffered harm because a doctor or hospital did not treat that person in accordance with the accepted professional standards. To prove these cases, a plaintiff must offer specific, sometimes expert, evidence.

Plaintiffs must prove that they were under a physician's care, that the doctor failed to act within the standard of care governing that medical specialty and that this care caused the plaintiff's injury or worsened a medical condition. When malpractice occurs, a patient should find further medical treatment, document their claim and seek legal assistance.

Medical malpractice cases include improper treatment, failure to diagnose or prescribing the wrong medication for a properly-diagnosed condition. A patient may sue for injuries that an obstetrician or other professional caused to the mother or infant during birth. Harm caused by failure to properly monitor a patient's condition is another ground.

Malpractice also involves surgical errors. These occur when a wrong procedure is used; wrong-site surgery or amputation; failure to completely perform a procedure, such as when a surgeon fails to remove all polyps in a patient; or a surgical mistake, such as when a sponge or clamp is left in the patient.

Finally, a doctor is required to advise their patient of the risks associated with a procedure so that the patient can provide informed consent. A patient can sue if the doctor did not adequately inform a patient of the risk, the risk occurs and the patient would not have undergone the procedure if the risk was adequately shared with them.

An expert witness usually provides an opinion on the professional standards of care expected by the doctor and whether the defendant breached these standards. These experts usually have specific knowledge about the medical issues involved in the case.

An expert is not required where negligence is obvious, such as when the doctor removed a wrong body part or left a sponge in the patient. In these cases, the plaintiff must prove that these accidents do not occur without negligence, the equipment or conduct which caused the harm was under the doctor's control during the entire procedure and the patient did not engage in behavior that contributed to the injury.

An attorney can assist patients or their families who are seeking compensation for malpractice that led to serious injuries or death. Legal advice should be sought promptly to meet filing deadlines.

Source: New York City Bar, "Medical malpractice," Accessed May 7, 2017

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Michael J. Gaffney, Attorney at Law
1164 Victory Blvd.
Staten Island, NY 10301

Phone: 347-286-1937
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