The New York City Bar Association defines medical malpractice as occurring when “… a doctor, health care professional, hospital or other health care facility fails to care for someone in accordance with the accepted standards of the medical profession and the person is injured, becomes ill or a condition or illness worsens as a result.”
When a doctor is treating a patient, he or she implies that the patient is receiving a level of care that is appropriate for the patient’s condition. If the doctor is unsure of the correct diagnosis, the doctor will order the diagnostic testing necessary to establish a diagnosis and then prescribe a plan of treatment. Should the doctor deviate from what are considered to be the established standards of care, he or she may have committed malpractice.
With this definition in mind we can focus our attention on two situations that are common to practically all instances of medical malpractice: failure to diagnose a condition in a timely manner and delay to treat a condition.
When a doctor accepts a patient, the doctor implies that he or she will provide a standard of care that will allow a prompt diagnosis of the patient’s condition in order that a treatment plan specific to the patient’s condition can be started. If the doctor fails to order the appropriate diagnostic tests or does not request the assistance on consulting doctors and the patient’s condition worsens as a result of that failure to diagnose, the patient may have a claim of medical malpractice.
To prove failure to diagnose a condition, it must be shown that the doctor did not make a diagnosis when another doctor, who has the same training and working under similar conditions, would have made the correct diagnosis sooner than the patient’s doctor.
Closely related to a failure to promptly diagnose a condition is a delay in treating that condition once a diagnosis has been established. Delay in treating can occur in an outpatient, hospitalized patient, or emergency room environment. If a doctor is aware of the diagnosis or a presumed diagnosis and fails to implement an appropriate course of treatment, an act of malpractice may have occurred.
In an emergency setting, if a doctor fails to promptly examine a patient who complains of a potentially life-threatening condition (such as chest pain or a sudden onset of paralysis) and fail to implement the accepted treatment for an emergency condition, he or she has committed malpractice.
Under the civil laws of New York and its adjacent states, anyone who was the victim of medical malpractice has the right to bring a legal action to collect damages from those who were responsible for the malpractice and any harm that resulted from their actions. These damages can include:
- lost income that would have been received if the victim’s condition had been properly diagnosed
- if a permanent disability or death occurred as a result of the malpractice, loss of income that the victim would have earned in the future
- medical expenses
- funeral and burial expenses
- the costs of rehabilitation and necessary modifications to the victim’s residence
- non-economic damages such as the physical pain and emotional trauma suffered by the victim and the victim’s family
There are, of course, always expenses that are unique to any given case. These expenses should be discussed with an attorney who has experience managing lawsuits in cases involving medical malpractice.
If you, or a family member, were the victim of medical malpractice by failure to diagnose or unnecessary delay in treating a condition, please feel free contact our firm to arrange a discussion of your case.