When we go to the hospital for a surgery, or visit our primary care physician with a health complaint, we hope that the medical staff or the doctors involved know what they are doing and will take good care of us. Unfortunately, this is not always the case. Scary stories of patients who had the wrong leg amputated, who had a perfectly healthy lung taken out, who were awake and sentient during their entire surgery, or who had a sponge lodged in their body for years are fact, not fiction. Close to 200,000 people each year are killed by medical mistakes in the United States.
Some specialists in the medical field claim that overworked doctors are to blame for medical mishaps of this sort. Other critics point to a general tendency to over-treat and over-medicate present in the US healthcare system. Whatever its cause, medical malpractice is real, and its victims may be maimed for life, or may pass away sooner than they would have if treated correctly. While medical malpractice victims will not get their health back, they can at least seek redress through the legal system. Anywhere between 15,000 and 19,000 medical malpractice suits are brought each year.
Medical malpractice happens when a doctor or hospital fails to provide adequate or appropriate medical treatment. When you walk into a doctor’s office or a hospital, you have the right to expect that medical professionals will treat you with enough care and with the right kind of care. When doctors and hospitals neglect to uphold this right to a certain standard of care, they have committed medical malpractice. If you or a loved one has suffered as a result of the error of a doctor or hospital, you may be eligible for monetary compensation for pain and suffering, medical bills, lost past and future wages, or loss of companionship. In order to get compensation, you need to file a medical malpractice lawsuit. New York medical malpractice lawyers at the Diefenbach Law Firm can begin the process of filing a medical malpractice lawsuit on your behalf. Medical malpractice lawsuits are complex cases that require the knowledge of an experienced medical malpractice attorney.
Types of Medical Malpractice:
• Wrongful Death
• Birth Injury
• Laparoscopy Error
• Spinal Cord Injury
• Brain Injury
• Surgical Error
• Unnecessary Surgery
• Failure to Diagnose a Disease or Ailment
• Untimely Diagnosis of Cancer
• Wrong Diagnosis
• Error in Prescribing Proper Medication
• Failure to Refer to a Specialist
• Adverse Drug Reaction
• Other Failures to Meet Appropriate Standards of Care
Diagnosis error is the most common type of medical malpractice in lawsuits, accounting for almost 30% of medical malpractice payments in the form of jury verdicts and settlements. Between 1986 and 2010, there were over 100,000 medical malpractice payments for incorrect or untimely diagnoses. Aside from diagnosis errors, the most common medical malpractice lawsuit payments are for errors in treatment and surgery.
A wrong diagnosis or a delayed diagnosis can severely diminish a patient’s ability to recover from an illness or disease. With cancer in particular, an avoidable delay in diagnosis allows the cancer to spread so that it becomes more difficult to treat when it is finally correctly diagnosed. A wrong diagnosis can lead to treatment that is both unnecessary and costly while allowing the true problem to go untreated and undiagnosed. Doctors are held liable under medical malpractice laws for diagnosis errors that would have been avoided had the doctors exercised proper care in treating their patients.
In May 2012, a Bronx jury decided that a woman deserved compensation of $120 million for her medical malpractice claim. The medical malpractice lawsuit was against three different New York hospitals who had treated the patient. The legal claim alleged that the hospitals mismanaged her medications, failed to respond to crises in a timely manner, and failed to provide essential treatments. As a result of multiple hospital errors, the patient had an allergic reaction to an anti-seizure medication, developed Stevens-Johnson Syndrome (SJS), which is a severe and potentially fatal skin disorder, and suffered brain damage. The compensation was for the woman’s pain and suffering, lost earnings, and medical costs. New York has no caps on how much money a jury can award to a medical malpractice victim.
Surgical negligence occurs when a patient is under anesthesia and therefore has a complete lack of control over what is happening to his or her body. Surgical negligence can occur in the form of operating on the wrong part of the body or operating on the correct part of the body in a careless manner. There have been recorded instances of surgeons amputating perfectly healthy limbs, as well as three cases in a Rhode Island hospital where surgeons operated on the wrong side of patients’ heads for brain surgeries. One common form of surgical negligence is the problem of surgeons and nurses carelessly forgetting to take surgical equipment out of the patient’s body before stitching up the wound. Towels and sponges used to soak up blood during surgery are sometimes difficult to spot, but operating staff is responsible for accounting for every towel and sponge before releasing a patient with a foreign object enclosed in her stomach.
Surgical negligence can occur even during minimally invasive surgical procedures, like those involving laparoscopy. During a laparoscopic surgery, a surgeon could inadvertently perforate a vital organ or cut the bile duct. If the laparoscopy was performed for the purpose of removing cancer, failure to remove all of the cancerous tissue can be considered surgical negligence.
When medical malpractice leads to the death of a patient, the family of that patient can file a medical malpractice lawsuit for wrongful death. A wrongful death lawsuit can help the family to get monetary compensation for the death of a loved one, as well as an admission from a doctor or hospital of responsibility for the untimely death.
Birth-related medical malpractice can harm a newborn baby in ways that will affect the rest of his or her life. Cerebral palsy, which interferes with one’s motor functions, can be caused in children by medical malpractice errors during birth. Cerebral palsy results from a lack of oxygen to the baby’s brain before birth. A baby could also be injured during birth if the doctor does choose the correct option for delivering the baby. For example, a doctor might perform a vaginal delivery, injuring the baby, when a Caesarian section is obviously the safer option based on the situation of the baby before birth.
In a medical malpractice case, the plaintiff, the injured party, bears the burden of proving that the doctor or hospital did not meet the appropriate standard of care because of one of the following failures:
• Did not possess the requisite knowledge
• Did not possess the requisite skills
• Did not exercise due care
• Did not use best judgment in deciding on a course of treatment
In general, a plaintiff needs an expert witness in order to meet his burden of proving the occurrence of medical malpractice. Successful medical malpractice lawsuits use expert witnesses to establish the prerequisites for a medical malpractice claim. A medical malpractice plaintiff must show that the doctor or hospital has caused an injury by failing to comply with the standards of skill and care that are normally met by doctors and hospitals during the type of treatment that the plaintiff received. An expert witness is often necessary to establish the standard of skill or care that is ordinarily used by medical professionals in the geographic area where the plaintiff’s misdiagnosis or poor treatment occurred. The expert witness can then use the plaintiff’s medical records to show the judge and jury how the doctor or hospital’s conduct was a departure from the standard of care normally used.
Once it has been established that the appropriate standard of care was not met, the plaintiff still must show that this failure resulted in injury. An expert witness will have the advanced medical knowledge necessary to show the causal relationship between the inadequate medical treatment and the plaintiff’s injury. Failure to procure an expert witness can get a medical malpractice claim dismissed, even if the claim is legitimate, because the testimony of a medical professional is almost always a requirement in establishing medical malpractice. The Diefenbach Law Firm will gather the expert witnesses that you need to prove that you have been injured by medical malpractice. Our New York medical malpractice lawyers will contact doctors and medical experts to comb through your medical records and verify that you have a legitimate medical malpractice lawsuit.
Res ipsa loquitur is a notable exception to the general requirement that medical malpractice claimants need to have expert witnesses. The doctrine of res ipsa loquitur (“the thing speaks for itself”) allows a plaintiff to establish the occurrence of medical malpractice from the mere fact that an adverse event occurred while the plaintiff was under the care of the doctor or hospital; however, the instances in which res ipsa loquitur applies are very specific. The doctrine will only apply when:
• The adverse event could not have occurred without negligence; and
• The adverse event must have been caused by someone or something within the exclusive control of the doctor or hospital.
When evaluating your medical malpractice claim, lawyers at the Diefenbach Law Firm will explore all possible medical malpractice doctrines that could establish the liability of the doctor or hospital.
Victims of medical malpractice need to keep in mind the statute of limitations on medical malpractice claims. The statute of limitations is the time frame in which a medical malpractice claim must be filed. After that time, even a meritorious claim of medical malpractice against a doctor or hospital will not be allowed to proceed.
In New York, the time frame in which a medical malpractice claim can be filed is within two and a half years of when the malpractice occurred, although there is an exception for continuous treatment. While the rule sounds simple, the timing issue can become complicated, especially when dealing with cases of continuous treatment, so it is important to work with a top medical malpractice attorney to navigate the statute of limitations rule and file your lawsuit in a timely manner. Contact a medical malpractice lawyer at the Diefenbach Law Firm as soon as possible to make sure that you begin your medical malpractice lawsuit before it is too late.
Medical malpractice is a controversial area of tort law. Doctors, hospitals, and insurers argue that medical malpractice lawsuits are usually frivolous and inhibit the medical profession’s ability to provide patients with the medical care they need. On the contrary, medical malpractice lawsuits are necessary for both compensation of past medical errors and for preventing future medical errors. Victims of medical malpractice will be compensated by insurance for the smallest amount the insurance company can legally pay unless they file medical malpractice lawsuits. Currently, there is no other method of compensation for medical malpractice victims, aside from the remedy of lawsuits, that can provide the full amount of damages suffered by a patient who has experienced medical malpractice.
An extensive Harvard study published in the early 1990s came to the conclusion that unjustified medical malpractice payments were rare; therefore, doctors and their malpractice insurers generally do not pay for medical malpractice errors that they did not actually commit. In a recent Op-Ed published in The New York Times, Joanna C. Schwartz, a UCLA law professor, argued that medical malpractice lawsuits benefit patient care in general. Professor Schwartz’s research showed that, because medical malpractice lawsuits are filed, hospitals are more open with their patients, they are more inclined to apologize for errors when they occur, and they make more of an attempt to discuss errors and learn from them.
Even if a medical malpractice lawsuit cannot fully undo the harm that medical malpractice caused to you or a loved one, it may help to ensure that the same type of harm does not occur to more patients in the future. Medical providers have an understandable tendency to under report their own errors, so medical malpractice lawsuits may be the only way of drawing attention to these errors so that they might be avoided in the future.