Of all the various types of professional malpractice, medical malpractice is the most prevalent. It is also the deadliest. In fact, researchers at Johns Hopkins University School of Medicine found that preventable medical errors in hospitals and other health care facilities are the third leading cause of death in the United States. The Institute of Medicine estimates that as many as 100,000 Americans die each year as a result of preventable medical errors.
When medical malpractice leads to death, the family of a deceased patient often files a wrongful death lawsuit against the negligent person and/or facility. In cases of nonfatal medical malpractice, the injured patient himself or herself often files a medical malpractice lawsuit.
The New York City Bar defines medical malpractice, also called medical negligence, as a doctor, health care professional, hospital, or health care facility killing or injuring a patient by failing to care for him or her in accordance with accepted medical standards of practice. Medical malpractice can take many forms, including the following:
- Improper treatment
- Injury during birth to the mother or child
- Prescription medication errors
- Failure to diagnose or misdiagnosing a patient’s symptoms
- Failure to monitor a patient’s progress
- Surgical errors
- Emergency room errors
- Failure to inform a patient about the risks of a specific treatment or procedure
A recent report by Statnews.com, a national publication site dedicated to finding and telling compelling stories about health and medicine, states that communication errors are one of the main causes of patient death. Close to 2,000 patient deaths and $1.7 billion in malpractice costs could have been avoided had communication been better between and among patients and hospital staff.
For example, one patient died of a hemorrhage after a nurse not only failed to tell her surgeon that she was experiencing abdominal pain after surgery, but also that her red blood cell count had dropped, a sure sign of internal bleeding. In another case, a diabetic patient called her doctor several times, but spoke only to staff personnel who failed to relay her messages to the doctor, who of course never called her back. She later collapsed and died from ketoacidosis, a condition caused by the body not having sufficient insulin.
Elements of a Medical Malpractice Lawsuit
A medical malpractice lawsuit is a civil suit seeking money damages as compensation for the injured person’s losses. In order to prevail in a medical malpractice suit in New York, the plaintiff must prove the following three things:
- The patient was under the care of a licensed physician.
- The physician and/or another health care professional and/or the medical facility failed to advise, diagnose, and/or treat the patient as similarly situated doctors and medical facilities would have done in a similar situation.
- The patient was injured, became ill, or suffered a worsening condition as the result of the medical negligence.
Filing the Suit
In New York, a plaintiff has two and one-half years from the date of the alleged medical malpractice in which to file a lawsuit. However, in the event the malpractice was leaving a foreign object inside the patient’s body, such as a surgical clamp, the plaintiff has one year from the date he or she discovered or reasonably should have discovered the object, whichever comes first, to file his or her claim.
As explained by Lawyers.com, a Martindale-Hubbell website, a medical malpractice lawsuit often is more complicated than other kinds of civil suits because of the complexity of the medical and legal issues involved. In addition, the plaintiff and his or her attorney must comply with special procedural rules.
Rule 3012-a of the New York Civil Practice Law and Rules states that in addition to the complaint itself, the plaintiff’s attorney must timely file a certificate stating the following three things:
- The attorney has reviewed the case and has consulted with at least one licensed health care expert, usually a physician.
- The attorney reasonably believes the expert to be knowledgeable with regard to the medical issues relevant to the plaintiff’s claim.
- The attorney has concluded, based on his or her review and consultation with the expert, that there is a reasonable basis for the lawsuit.
In addition, if the attorney is relying on the legal liability argument of res ipsa loquitur, he or she must so state in the certificate. Res ipsa loquitur is a Latin term that means “the thing speaks for itself.” Leaving a foreign object inside the patient during surgery is a good example. The fact that it is there proves that it would not have been there but for the negligence of the surgeon.