New York Medical Malpractice
When you see a doctor, chiropractor, dentist or other medical professional because you have a concern, the last thing you expect is for the medical professional’s actions to cause harm. Unfortunately, doctors and other medical professional do make mistakes. Whether the medical professional is a medical doctor, naturopath, chiropractor, dentist or nurse, when mistakes occur the consequences can be tragic. For example, if an obstetrician fails to diagnose preeclampsia or if a nurse fails to properly monitor the fetal heartbeat, the result could be that the baby suffers a birth injury. Other types of injuries that result from medical mistakes include brain injuries, internal damage, and even amputations. Unfortunately, medical mistakes lead to death in far too many cases. If you or a loved one has been injured due to a medical mistake it is important to immediately speak with an experienced New York medical malpractice lawyer who will review the medical records and other facts of your case and explain to you your legal options for pursuing a claim.Common types of medical malpractice
There are three general types of medical malpractice cases:
Misdiagnosis. A misdiagnosis occurs when a physician or other medical professional fails to make the proper diagnosis based on the patient’s symptoms. Misdiagnosis can involve the doctor making no diagnosis at all, i.e. fails to find anything wrong with the patient; the doctor making an incorrect diagnosis; or the doctor failing to promptly diagnose the problem. As a result the patient suffers a serious injury. Medical misdiagnosis medical malpractice accounts for a significant number of medical malpractice lawsuits in New York. For example, an obstetrician fails to diagnose the signs of preeclampsia and as a result the mother suffered severe kidney damage. As a New York medical malpractice lawyer will explain, simply because a doctor made an incorrect diagnosis does not mean that he (or she) was negligent. In fact, it is not unusual for highly skilled and experienced doctors to not get a diagnosis correct the first time.
A misdiagnosis amounts to medical malpractice when the doctor makes missteps in the differential diagnosis, which is the methodology doctors use to arrive at diagnoses. Differential diagnosis involves the doctor employing a systematic method of determining the cause of the patient’s condition. After examining the patient, the doctor makes a list of diagnoses in order of probability. The doctor tests the probability of each diagnosis by asking the patient questions, making observations, and ordering tests. Eventually the doctor narrows the possibilities down and arrives as the proper diagnosis.
To prove medical malpractice, the victim must show that the doctor did not include the correct diagnosis on the differential diagnosis list, despite the fact that any competent doctor under similar circumstances would have included it on the list. In other words, you would have to show that the doctor did not even consider the proper diagnosis even though pretty much any other doctor would have. You can also prove malpractice based on medical misdiagnosis if the proper diagnosis was on the doctor’s differential diagnosis list, but the doctor failed to perform the proper tests that would have proven the viability of the diagnosis.
Another way that misdiagnosis negligence could occur is if the diagnostic test is not performed correctly, and as a result the property diagnosis is ruled out. The doctor does not always perform the diagnostic tests. They might be performed by a technician or a lab on which the doctor depends. In such a case, while the doctor may not have been negligent, the victim may have a claim against the lab, technician, some other medical professional, or the healthcare facility.
To prove malpractice, the victim must show that as a result of the misdiagnosis or the delayed diagnosis, that he or she suffered serious harm.
Improper treatment. Another form of medical malpractice occurs when a doctor or other medical professional correctly diagnoses the patient’s condition, but fails to treat it correctly. As a result, the patient is harmed. Improper treatment can result from a variety of missteps in the care of the patient. If the doctor fails to carefully read the patient’s records, he (or she) may end up prescribing the wrong medication, or subjecting the patient to some other incorrect type of treatment that not only does not help the patient, but actually causes the patient’s condition to deteriorate. Similarly, a clerical error could result in incorrect or incomplete information being in the patient’s file, resulting in the wrong treatment.
Doctors and other medical professionals are expected to keep up to date with the latest procedures, treatments, and protocols. If the doctor uses a course of treatment that is no longer consistent with accepted standards and as a result the patient is harmed, the doctor would be liable for medical malpractice.
Other circumstances that can lead to improper treatment include misdiagnosis, surgical errors, improper application of treatment, incorrect charting, administering medication incorrectly, and ordering the wrong tests.
Examples of improper treatment include performing a bypass surgery on the wrong artery, administering a blood transfusion with an incompatible blood type, leaving surgical tools inside patient, amputating the wrong limb, removing the wrong kidney, and treating the wrong patient.
Failure to warn. A doctor is required to make sure that a patient understands the risks and benefits of a particular course of treatment. If the doctor fails to get a patient’s informed consent before proceeding and the treatment ends up harming the patient, then the patient may have a medical malpractice claim. Before moving forward with a course of treatment or tests, a doctor is required to inform the patient of his (or her) diagnosis if it is known. He is also required to let the patient know about the nature and purpose of the procedure, treatment, or test, as well as the associated benefits and risks. The doctor would not have fulfilled his (or her) obligation to properly warn the patient if he discusses only the benefits of the treatment, procedure, or test, and not the risks. In addition, the doctor must also let the patient know about the risks and benefits of alternative treatments, tests, or procedures, regardless of their costs and regardless of whether or not insurance covers them.
The doctor must give the patient enough information so that he understands the risks and benefits of the procedure. The doctor should also allow the patient a chance to consider the information and ask questions. There are consent forms that doctors give to patients to sign to document that that the doctor provide the patient with details about the procedure, treatment or test, including the risks and benefits. The patient’s signature generally serves as evidence of consent, while a lack of signature tends to indicate that the patient did not consent. As a New York medical malpractice lawyer will explain, handing a patient a form to sign without an explanation is not enough. The doctor must also explain the nature of the procedure, tests, or treatment as well as the risks and benefits.
If a medical professional fails to get informed consent and the procedure does not go well, the patient has the right to file a claim against the medical professional based on lack of informed consent. The patient may prevail in his (or her) claim even if the procedure, treatment, or test was properly performed, but ended up harming the patient. It is also important to understand if the patient needed emergency treatment, the patient cannot recover compensation based on lack of consent. However, if the doctor is otherwise negligent, the patient may be able recover compensation based on improper treatment or misdiagnosis medical malpractice.
It is important to understand that in order for a medical professional’s actions to be considered malpractice, the actions must deviate from accepted medical standards.Pursuing damages for medical malpractice
If you were injured because a medical professional made a mistake, the law allows you to file a special type of personal injury claim against that medical professional called a medical malpractice claim. Oftentimes the defendant is a physician, a specialist, a nurse, a medical technician, or some other healthcare provider who deviated from the general accepted standards in caring for you. However, the defendant may also be the government agency that operates hospitals or the hospital itself for negligence in the way it managed the medical staff. Through a medical malpractice claim, you can demand payment for the following losses:
- Medical expenses: All past and future expenses related to treating the injury that resulted from the medical mistake. For example, if an error in administering anesthesia lead to a brain injury, then all expenses related to treating the brain injury are compensable. As a medical malpractice attorney in New York will explain, it is critical to demand not only past medical expenses, but future medical expenses as well. In cases of injuries that are serious or permanent, the victim will typically accumulate a substantial amount of medical expenses in the months and years after filing a claim. An expert will be needed to help provide evidence as to the estimated amount of future medical expenses.
- Lost wages: This includes income and benefits that you lost or were unable to accrue because you were not able to work due to your injury such as lost weekly, biweekly, or monthly pay; vacation or sick days that you used while recovering from the medical mistake; bonuses or promotions that you would have received but for the medical mistake; and other benefits and compensation you lost. Self-employed victims have the right to demand compensation just like victims who are employees. If you were self-employed your lost wages would be based on evidence of revenue that you lost because you were not able to provide service to your customers because of your injury.
- Pain and suffering. This includes compensation for persistent pain, discoloration, disfigurement, scarring, or poor mobility, as well as psychological suffering such as depression, PTSD, fear, and feelings of hopelessness. For example, in a case where a surgeon amputates the wrong limb, it is likely that the pain and suffering award would be significant since the damage to the victim is substantial and permanent. The victim’s life would be forever changed, and he or she would be limited in many ways. Similarly, in a case where a negligent surgeon left instruments in the patient and as result the patient suffered months of pain, the victim would likely receive a substantial pain and suffering damage award.
- Wrongful death. Sadly, whether the medical mistake was due to wrong diagnosis, improper treatment, or failure to warn, far too often medical mistakes lead to the death of a the patient. When this happens, the personal representative of the victim can file a wrongful death lawsuit against the negligent medical professional for losses suffered by the decedent’s estate such as lost compensation for the period between the injury and the decedent’s death.
If you or a loved one was injured due to the incompetence of a healthcare professional, you should contact an experienced attorney who understands the legal issues associated with medical malpractice cases. The seasoned medical malpractice attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have the experience, knowledge and resources to handle cases involving medical misdiagnosis, failure to warn, and improper treatment, regardless of whether the negligent party was a medical doctor, surgeon, specialist, dentist, chiropractor, nurse, physician’s assistant, medical facility, or lab. We will work hard to ensure that your legal rights are protected and that you receive the maximum compensation to which you are entitled given the specifics of your case. Contact us at 800.NY.NY.LAW (800.696.9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Westchester County, Suffolk County, Staten Island, Bronx, Brooklyn, Long Island, Manhattan, Nassau County, and Queens.