Failed Surgery? Victim of a Misdiagnosis?
Many of us know what it feels like to be disappointed by someone we trusted, but what happens when that person is your doctor? What do you do when a treatment or procedure goes wrong and the medical professional responsible starts brushing you off?
Unfortunately, this type of situation is all too common following incidents of medical malpractice. A healthcare professional makes a bad decision, failing to maintain a certain standard of care, and you or a loved one must suffer through the pain and confusion. This is not fair and you should not have your world turned upside down because a doctor fails to do their job properly.
What is “Medical Malpractice”
At its most basic, medical malpractice happens when a doctor or licensed medical professional deviates or departs from the ordinary standard of care, and that deviation or departure is the cause of harm to the patient. Let's clarify.
What is the “standard of care”?
The standard of care is that care that has been recognized by the medical community as appropriate under the circumstances.
An example of this is the treatment of an unknown lump or mass that a patient or physician notices. The standard of care might call for a series of steps by the doctor to eliminate, or rule out, possible causes. These steps might include: determining the patient's history; feeling or palpating the mass to determine whether it is soft or hard, mobile or immovable; is the size the same or is it growing; determining whether there is associated pain; performing an x-ray, MRI or CT scan; and performing a biopsy or removing the mass.
Each of these steps may not be necessary, and in many cases there may be others. Medicine is not an exact science, so what constitutes the appropriate and applicable standard of care is often up for debate.
What is a deviation or departure from the standard of care?
Generally speaking, a deviation or departure from the standard of care means that a doctor failed to take steps that are generally agreed in the medical community to be appropriate under the given circumstances, and as a result hurt the patient.
In our example above, a deviation from accepted standards of care might occur where the doctor observes a mass in the area of a patient's knee, notices that it is getting larger and more painful, but fails to order any tests to rule out that it could be a tumor or non-cystic mass. Under the circumstances the doctor's actions may very well be a deviation departure from accepted standards of care, because the medical community is in general agreement that appropriate care would have been to further investigate to rule out potential problems.
It's important to remember, however, that an “error in judgment” does not constitute a deviation or departure from the standard of care. An error in judgment happens when a doctor considers multiple options that are generally accepted, and chooses one over the other for his or her own reasons, based upon experience and judgment. An example of this might be where a doctor is faced with a fractured leg that could either be set with what is known as a “closed” or non-surgical treatment, or could be operated on with an “open” or surgical treatment. If the doctor adequately considers both options and chooses one this might be considered “medical judgment”, which is not a deviation or departure from accepted standards of care.
How do we know if the deviation or departure caused harm?
If we know that the doctor's actions deviated from accepted medical standards of care, the next question we ask is whether the patient was hurt as a result. This often not as clear as it should be.
Using the example above, if a doctor fails to appropriate consider treatment options where the patient has an unknown and undiagnosed mass, this could clearly constitute a deviation from accepted standards of care.
If it turns out that the mass that the doctor failed to appropriately treat or consider is benign or harmless, the actions of the doctor did not cause the patient harm.
If, however, the mass was malignant or cancerous, and as a result of the failure to appropriately treat it cancer was allowed to spread in the patient's body, then there is clear harm that resulted from the deviation.
There is, of course, a middle ground here, and whether malpractice caused actual harm is a very common defense to medical malpractice lawsuits in New York. For this reason, it is critical to consult with an experienced malpractice lawyer before moving forward.
How long do I have after malpractice to bring a lawsuit?
With some exceptions (public hospitals, etc.), the statute of limitations on a medical malpractice claim in New York is 2 ½ years from the date of the malpractice. This means that if the victim does not file a lawsuit within that time, they are forever barred from bringing a claim.
In some cases, however, the time to file a lawsuit may be extended. This can happen where a patient has been continuously treating with a doctor for the same condition following the malpractice. This is known as the “continuous treatment doctrine”, and it is meant to protect patients where because of their continuing treatment with the same doctor they have no reason to know about the malpractice.
How do you determine if there was medical malpractice?
If you are involved in a car accident, and you are injured, you can bring a lawsuit by simply hiring a lawyer and filing papers with the court clerk.
In a medical malpractice case there is an added step, and it's the step that allows lawyers to determine if there was malpractice.
Before filing a claim for malpractice in New York the case must be reviewed by a licensed medical provider to determine if it has merit. Given that the practice of medicine is foreign to most people, in some ways this seems logical.
The medical provider will review the medical records and will make a determination as to whether malpractice occurred. If it did, the lawyer will then file the papers to start the lawsuit and will add a document called a certificate of merit.
What Types of Medical Malpractice Claims Do We Handle?
We generally limit the number of medical malpractice cases that we handle at any given time. This is because the cases are complicated, expensive, and take time. We represent victims in medical malpractice cases involving failure to diagnose cancer; medication errors and overdoses; hospital negligence, surgical errors and podiatric malpractice.
People don't always think about podiatrists when it comes to medical malpractice, but malpractice can happen in any type of medical situation, no matter how specialized. Podiatric malpractice frequently occurs when a patient goes in for some type of surgical procedure, such as bunion surgery, correcting a nerve injury, or fixing a ruptured Achilles tendon.
These procedures are not always successful, but failed surgeries are not always the result of malpractice. Podiatric malpractice happens if the podiatrist does not maintain a certain standard of care. Standard of care equates to the understanding that another podiatrist in similar circumstances would make the same reasonable decisions regarding a patient's well-being. If what a podiatrist did to you is completely off-base from what other skilled podiatrists would do, that's when you may have a problem.
If you have questions about a possible medical malpractice case contact us today, or visit our medical malpractice FAQ page for more information. Or, for a quick case assessment complete our medical questionnaire.