Medical Malpractice Frequently Asked Question

In New York , what is considered medical malpractice?

Medical malpractice in New York may arise from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of the professional's duties that causes harm to another. Medical malpractice typically occurs if a professional fails to exercise his or her professional skills in an assignment he or she has accepted at the standard of care, skill and learning applied circumstances by the average prudent reputable member of the profession in the given "community". A New York medical malpractice attorney would make a comparison of performance based upon the standard of care for the professional in the "community". In other words, the medical malpractice would be based upon what other professionals in the same field do for their clients who are located in the same geographic area.

In order for New York medical malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professionals services.

What are some specifics with respect to New York medical malpractice?

There are states that have laws significantly limiting the amount of damages that an injured person may recover as a result of medical malpractice. The applicable statute of limitations may also be shortened in some states. A state may have also established mandatory arbitration of medical malpractice disputes as a pre-requisite to a lawsuit for medical malpractice.

If a New York medical malpractice attorney is to prevail in a medical malpractice lawsuit, they must prove that the injury, loss or damage resulted from the doctor's deviation or failure to conform to the applicable standard of care for your condition in one's community.

Is misdiagnosis considered to be medical malpractice in New York ?

Misdiagnosis may not be considered medical malpractice in New York . Because medicine is not an exact science, doctors are not required to be right every time they make a diagnosis. It is a fact that a misdiagnosis can be arrived at through standard tests, even when the tests are performed accurately or evaluated by a skilled doctor with the utmost care.

The services of a New York medical malpractice attorney may be required if a doctor fails to get a medical history, order the appropriate test for the illness, or recognize the symptoms of the illness. However, there is no basis for a medical malpractice claim if there is no injury, loss or damage as a result of the misdiagnosis and consequent treatment.

In New York , who can commit malpractice?

In theory, any professional who renders services upon which you and others rely upon can commit medical malpractice in New York . This professional is generally licensed or regulated by the state.

Most often, accountants, attorneys, actuaries, chiropractors, dentists, physicians, psychologists and therapists are typically the persons a New York medical malpractice attorney would name in a "malpractice action". When others engage in medical malpractice, the action is referred to as negligence, not malpractice. In actual practice, a New York medical malpractice attorney would only seek to hold accountable those who have special skills or abilities in a case of medical malpractice litigation.

Will my New York medical malpractice attorney need an expert to prove that medical malpractice has occurred?

A New York medical malpractice attorney will almost always need to retain the services of an expert to prove the medical malpractice as occurred. In order to establish medical malpractice, it will be necessary to prove what the standard of care in the community for professionals handling a similar matter. Lay people do not have the necessary education, experience or skills to act as an expert and accurately gauge what a professional is supposed to do or refrain from doing in a particular situation.

In order to determine what should or should not have been done in your particular circumstances, a New York medical malpractice attorney will seek an expert with the requisite education, experience and skill will be needed to establish the standards of the community. Many New York medical malpractice lawsuits are won or lost based upon the effectiveness of the expert.

Experts should always be hired by your New York medical malpractice attorney, to maintain confidentiality and retain your rights.

In New York , how do I recover damages sustained due to medical malpractice?

A New York medical malpractice attorney's first inquiries will help determine whether medical malpractice has been committed. Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do? Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable medical malpractice.

You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you s/he's at fault. (He may not even know s/he's at fault.) Even a New York medical malpractice attorney has to hire an expert or consultant to help assess whether or not there was medical malpractice. Unless the facts are very clear, chances are you will be asked to pay for the cost of that initial assessment.

If a procedure was not successful, is that considered medical malpractice?

In New York , Medical malpractice does not occur every time medical treatment is not successful. Doctors are not guarantors of the services which they render. A doctor is, however, required to have the necessary knowledge and experience to perform the services in question. If a New York medical malpractice attorney would take action, that would examine if a doctor exercised the skill and care that others in the community use when dealing with similar treatments.

Is a licensed doctor protected from a medical malpractice claim in New York when he or she provides emergency medical treatment at an accident site?

In New York and elsewhere, medical malpractice cannot occur when a licensed doctor is performing emergency medical treatment at an accident site.