What Is Medical Malpractice?
Medical malpractice means that a physician breached his or her duty to properly care for a patient.
What does an injured patient have to prove to win a medical malpractice action?
The injured patient must prove that the physician or medical provider breached the medical standard of care, and that such failure caused the patient injury or harm. The standard of care is the care that a competent physician, or medical provider would provide. Except in unusual cases, juries decide the standard of care by listening to the testimony of medical experts from both sides.
Because of the significant expense and time necessary to win medical malpractice cases, as a practical matter, most cases that go forward involve permanent and significant harm, or death.
What Are Common Types of Medical Malpractice?
Delayed diagnoses of cancer
Medical providers may miss cancer on an image or on clinical exam, or they may spot the cancer but fail to tell the patient about the cancer, or they may fail to treat it. The resulting delay in diagnosis and treatment may decrease the patient’s chance of cure and life expectancy. It may also cause the patient to endure significantly more chemotherapy, radiation, or surgery. Click here to learn more about how juries and courts evaluate these cases.
Failure to diagnose an illness or disease
A medical provider must diagnose a patient’s illness or disease by “ruling out” other causes until she determines the right diagnosis. Physicians do this by testing and working up the patient until the patient’s disease, or illness is diagnosed. When this doesn’t happen, the medical provider has not followed the standard of care. If harm results to the patient, the physician may be answerable to the patient in a medical malpractice case. For example, a patient presents to an emergency room with chest pain and is sent home without ruling out a heart attack. The patient dies. This would present a case of medical malpractice for failing to diagnose a heart attack.
Surgeons operating on a patient may leave surgical pads or foreign objects inside the patient, amputate the wrong leg, remove the wrong organ (“Wrong Site Surgery” or WSS) , or operate on the wrong patient (“Wrong Patient Surgery” or WPS). These sentinel or “never ever” events usually signal medical malpractice.
In addition to these sentinel events, improper surgical technique can perforate and damage internal organs, cause internal bleeding, or spread infection. Patients also must be positioned and padded properly to protect nerves, spinal elements, and muscles from pressure from an extended surgery. Failing to follow the appropriate standards of care in such cases if harm results to a patient constitutes medical malpractice.
Failing to Communicate between Medical Providers
Medical practices, hospitals, and care networks are complex. Sometimes patients fall through the cracks and their care suffers. An MRI report may be faxed to a hospital floor requiring immediate action, but no one reads it. A surgeon orders a follow-up breast biopsy, but the scheduler forgets to call the patient. Bloodwork shows a rapidly growing infection, but the doctor never receives it, and doesn’t follow up. If the patient is harmed, the care network and providers responsible for the error may be liable in a medical malpractice case to the injured patient.
Failure to Treat
An illness, condition, or post-operative complication may prove fatal or seriously harm a patient if not quickly and properly treated. Sometimes this means taking the patient to surgery quickly, or getting antibiotics into the patient, or stopping a patient’s post-operative internal bleed. Whatever the specifics, the standard of care requires that medical providers treat the patient in a timely and proper manner to prevent harm to the patient.
Cases of medical malpractice in this area arise when a patient receives the wrong medication, or gets too much of the correct medication, or does not receive the correct medicine at the right time. These cases can be devastating for patients, as the effects of improper medication can be fatal or leave the patient with permanent deficits. The error may trace back to the institution’s pharmacy issuing the wrong medications or the incorrect dosage, or the staff mixing medications or dosage rates. Physicians’ order may be written illegibly or be misunderstood. For more information, see https://www.ncbi.nlm.nih.gov/books/NBK225187/
The improper discharge case
Hospitals — including emergency rooms –may discharge a patient too early, or with the wrong diagnosis. If the patient then suffers harm from the ongoing condition that existed at discharge, the hospital and its physicians may be held liable in medical malpractice.
Hospitals and medical practices can be dangerous places. Oxygen can ignite during operative procedures. A respirator, infusion pump, or alarm system can fail, leaving a patient in distress. The patient may suffer injury from a contaminated drug. In such events, the hospitals and/or medical providers have been held responsible for patient injuries resulting from equipment malfunctions.
Falls and injuries in the hospital or nursing home
Patients in hospitals often cannot walk or stand unassisted. Nursing or health care staff must use accepted methods to safely support or assist patients when they are moved from their beds. This includes mechanical devices, such as Hoyer lifts, sliding boards, or stretchers. When patients are not properly moved or supported, they often fall and suffer injuries. These cases often turn on the fall assessments and protocols ordered, or which should have been ordered for the patient, whether the nursing and health care staff followed the protocols, and whether the event was witnessed.
The lack of informed consent case
In New York this is a close cousin to a medical malpractice case. Under New York Public Health Law Section 2805-d, the patient must show that a doctor did not disclose to the patient the reasonably foreseeable risks and benefits involved as a reasonable physician would have done under similar circumstances, in a manner that would have permitted the patient to knowledgeably evaluate the treatment or diagnoses. The right of action is limited to a non-emergency treatment, procedure or surgery, or a diagnostic procedure invading or disrupting the integrity of the body. The patient must also establish that a reasonably prudent person in the person’s position would not have undergone treatment or diagnoses if she had been fully informed, and that the lack of informed consent caused the injury or condition for which the patient is bringing the case. Defenses to the claim are that the risk not disclosed was too commonly known to warrant disclosure or that the patient assured the doctor that she would undergo the treatment and did not want to be informed of the risks, or that consent was not reasonably possible, or that the doctor used discretion in disclosing the risks because he reasonably believed that the disclosure of the risks could adversely and substantially affect the patient’s condition.
Who Is Liable for Medical Malpractice?
Any provider or institution that has and breaches a duty to provide medical care to a patient that causes harm to a patient, including:
- Specialists such as surgeons, radiologists, consulting physicians, cardiologists, and emergency room physicians;
- Urgent Care Centers
- Imaging and Oncology Centers
- Rehabilitation Centers;
- Emergency Departments;
- Physicians’ Assistants
- Nurse Practitioners
- Primary care doctors
Why Are Medical Negligence Cases So Complex?
Medical malpractice cases can be complex because of the medical issues involved, and the number of experts that a patient must present at trial. These can include experts on the medical standard of care, an expert on causation – whether the malpractice caused the injury – and experts on the patient’s economic losses. If differing physicians or institutions are involved, the number of experts can and usually does increase.
The jury considers the differing expert opinions and determine the standard of care, whether it was violated, and if so, did that violation cause the patient’s injuries. If the jury answers these questions yes, then the jury must determine the amount of the patient’s losses.
As counsel for the injured patient, or in the case of a patient’s death, the injured patient’s family or representatives, we simplify the core issues and present them to the jury in a manner that they can understand — within the framework of their common life and experiences. The basic errors grounding a medical malpractice case should not be difficult to understand.
What are the defenses to a medical malpractice action?
We evaluate them early on to evaluate the case and accurately advise the patient and family.
- All treatments have risks and complications and a certain percentage of the population will suffer these events. Most people sign consent forms but do not expect that they will be the patient suffering the adverse event or complication. Medical providers cannot and do not guarantee results, or outcomes. Even in the most skilled hospitals and under the most skilled physicians, complications occur.
- There was no breach of duty, or deviation in the medical standard of care. The medical provider will argue that whatever they did or did not do satisfied the medical care and there was therefore no breach of duty, and therefore no case.
- Whatever the patient alleged as an injury did not happen as a result of any breach of duty by the defendant. The defendant will claim that it did not breach a duty, but even if it did, that breach did not harm the patient. It was some other condition or event that did this. For example, if a patient dies and there is no autopsy, an argument on causation can be expected.
- The patient’s damages resulting from pre-existing conditions. If the patient was a smoker, and an orthopedic surgery went bad, the surgeon’s attorneys may blame the smoking for that poor recovery.
- Another common defense is to blame the patient. The patient did not take the medications as ordered, the patient should have called in earlier, the patient should have gone to the emergency room, the patient should have called the doctor’s office, or the patient was either not being active enough, or too active.
What Should I Look for in a Medical Malpractice Lawyer?
Experience, knowledge of medical malpractice cases, a demonstrated track record, and above all compassion for you and your family. At the Law Offices of Patrick J. Higgins, PLLC we do not take many cases. In fact, we turn down most of them. That is because the cases we do accept require and get our full attention, passion, and determination. Medical malpractice is a specific type of litigation that the client and attorney must work closely on together to maximize the client’s chances of success. We are privileged to represent such clients.