Medical Malpractice FAQ

You can file a medical malpractice claim against an entity or a person who provides health care. In addition to doctors, people may file claims against nurses, pharmacists, aides, medical technicians, physical therapists, optometrists, psychologists, emergency room technicians and more.

One may also file a medical malpractice claim against a business entity such as a hospital or clinic if an employee was negligent. Remember, however, that in many cases, a doctor is not actually an employee of a hospital or a clinic, so if a physician was negligent, the victim would have to file a lawsuit directly against the doctor.

Although every case is different, there are certain categories of medical negligence that frequently result in legal action against a provider. Such cases include:

• Misdiagnosis or failure to diagnose
• Care that is not up to the accepted standard
• Neglect or abuse, particularly common in nursing homes
• Medication mistakes
• Unclean environments or improperly sterilized instruments

Like most personal injury cases, medical malpractice cases do not always go to trial, but are sometimes settled before trial. These types of cases are often fought hard, however, so they go to trial somewhat more frequently than other personal injury cases. It is very important that an attorney prepare a case on the assumption that it will proceed to trial. This sends a signal to the malpractice insurance companies that insure doctors and hospitals that you are prepared to fight hard to obtain just compensation.

It is also important that your attorney be a good negotiator to arrange for the best settlement possible if a case does not proceed to trial.

You can see a doctor’s record by going to the New York State Physician Profile website. There, you can get information about medical malpractice lawsuits, education, payment options, languages spoken and other information.

Each case is different and information about your specific case is best obtained from an experienced medical malpractice lawyer. In general, however, you may have a case if you can prove these four things:

• The provider in question had a duty to you. In other words, you had to be an actual patient with a relationship to the provider. You cannot sue a provider with no formal provider-patient relationship, i.e., someone on TV or someone who writes a book.
• The duty was breached, or not followed. For example, the medical professional had a duty to provide you with medical care and treatment at a generally accepted level. To use an extreme example, a provider who used hypnosis to repair a broken leg would be in violation of the duty of care.
• This breach of duty directly caused you harm. To continue with the broken leg example, the fact that your broken leg never healed properly, leaving you unable to walk without assistance and causing you pain, would be an example of harm suffered because of the breach.
• It is possible to calculate the value of the harm caused by the breach. To use the broken leg example once again, assume that the fact that you could not walk without assistance led you to lose your job as a server because you could no longer perform the required duties of the position. Your compensation could include your lost income, your medical bills and possible pain and suffering. An experienced medical malpractice lawyer can advise you about the damages you might be able to receive in your specific situation.

As with so many other issues connected with medical malpractice cases, it depends. If your doctor or other provider should have reasonably been able to diagnose your condition, then you may have a case because of the misdiagnosis or delayed diagnosis.

Informed consent claims are a different type of claim that arises when a patient alleges that:

• The physician did not properly disclose the material risk of a procedure or treatment.
• The patient would not have moved forward with the treatment if he or she had known about the risk.

The statute of limitations varies, depending on the type of case. In some instances, a patient has three years to file a claim, while in other cases it is less. An experienced New York medical malpractice attorney can advise about the time limit that applies to your particular situation.