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DO I HAVE A GOOD MEDICAL MALPRACTICE CASE?
December 2023
When a person receives medical treatment from a doctor or hospital and then suffers an injury afterwards, it can be difficult for a non-medically trained person to determine if the treatment was negligent or constituted medical malpractice.
In New York, before filing a lawsuit for medical malpractice, an attorney must certify to the Court that he or she has consulted with a medical professional about the case, and that in that medical professional's opinion, there is a viable claim for malpractice.
So even medical malpractice attorneys are not the last word on whether there is a valid claim for medical malpractice.
In order to have a successful claim for medical malpractice, you must be able to show:
- There was a doctor/patient relationship;
- That the medical care and treatment you received was below the standard of care in that field;
- That you were injured;
- And that the injuries you sustained were a result of the medical malpractice that was committed by the doctors or hospital that you sued.
The standard of care is the medical care and treatment that would be expected to be administered by a medical professional or medical facility in that area.
If we are suing in New York City, the standard of care is what kind of treatment would we expect from a doctor or hospital in this area? The question is NOT, what is the care and treatment I would receive from the best doctor in the world, or the #1 surgeon that developed a new technique, or the hospital that has the only experimental treatment for a rare disease. It is, how would a reasonably careful and competent doctor or hospital treat me in this area?
The expert that the medical malpractice attorney consults with will be the guide as to the standard of care, as the expert should be a physician that has the knowledge, training and experience in the same particular field of medicine as the doctor/hospital who is being sued. Most of the time, there is no guidebook or proclamation that sets out this standard of care in writing, so it is important to speak with the right expert that is knowledgeable about the field of medicine that is at issue.
In addition to malpractice, or treatment that did not live up to the standard of care, an attorney must be able to prove that the client suffered injuries that were caused by that malpractice.
Just because a person has an injury after medical treatment, or a surgery that does not heal a person's ailment, does not necessarily mean there is malpractice.
They call it the "practice" of medicine for a reason, every procedure is different, every person's body is different, people respond to treatment or surgery in different ways, people heal in different ways.
In order to have a successful claim, a medical malpractice attorney must be able to show that because a person received substandard medical care, he or she was injured, and that if they did not receive this substandard care, the injuries would not have happened, or perhaps the injuries would not have been as severe or permanent.
The task of connecting the dots between injury and malpractice is accomplished by carefully reviewing medical records and having the medical expert give an opinion that the injuries were caused by the malpractice. Without this opinion, the malpractice lawsuit can be defeated by a competent defense attorney.
In order to properly determine if there is a good case for medical malpractice, all relevant medical records must be obtained and reviewed, a history of an injured person's medical treatment must be obtained, and a proper evaluation of a person's injuries must be performed. Once all of the information is gathered, the medical expert is consulted and if a positive opinion regarding malpractice and a connection to the injury is given by that expert, an attorney can then proceed with filing a lawsuit and starting to build the case against the defendants.
Often, a determination of whether there is enough evidence for a case cannot be made at the initial consultation with an attorney. If you think you have a claim for medical malpractice, or have any questions about how to evaluate your claim, please contact us.
McCann Legal, PC
We give injured people a chance to tell their stories to insurance companies and juries so they can get paid the money they are owed.