Any case of medical malpractice, sometimes referred to as medical negligence, must comprise the following four elements, known as the four D’s.
- Direct cause
In order for a court to find that medical negligence occurred in your case, you must be able to prove each of these four elements, based on a preponderance of the evidence.
Doctors, surgeons, nurses, and other medical professionals owe their patients a duty of care. This duty requires that professionals treat their patients in a manner that measures up to a generally accepted standard of care. In other words, they must provide the type of treatment and level of treatment as would a reasonably skilled and competent healthcare provider with a similar background in the same medical situation.
The key to establishing this duty in a medical malpractice case is proving that the plaintiff and the defendant had a doctor-patient relationship. This relationship also extends to a clinic or hospital. One way to prove this relationship, which also extends to a hospital or clinic, is by providing medical records. This type of documentation offers the connection that a court needs to see: you sought this medical professional’s help, and they knowingly accepted you as a patient.
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When a medical provider fails to fulfill such obligations to their patients, the behavior is considered a dereliction of duty. When the plaintiff’s attorney proves this violation of duty, they establish medical negligence. Medicare offers the following examples of medical negligence:
- Failure to diagnose a condition
- Failure to treat a condition after it changes
- Unnecessary treatment or surgery
- Inappropriate treatment or surgery
- Discharging from a hospital too soon
- Drug errors
Proving medical negligence sometimes proves to be a challenge, especially considering that typically the bulk of the evidence about treatment comes from the medical provider’s documentation, which often—and understandably—only supports the defendant’s case. Medical negligence lawyers typically have to reach out to objective qualified medical experts, who of course have no relationship with the medical treatment provider(s) charged with malpractice, who attest to the accepted medical practice—and whether the physician or other provider(s) met this accepted medical practice.
Still, medical negligence in and of itself does not necessarily cause injury. When this is the case, that there was negligence but no resulting injury, the negligence does not constitute medical malpractice. However, negligence leads to a medical malpractice claim if the following two D elements—direct causation and damages—can be established.
In 2016, The BMJ published an analysis of medical death rates over the course of eight years. The published report reveals that medical error is the third leading cause of death in the United States. When a patient suffers an injury, and they prove it was the direct result of medical negligence, a medical malpractice claim can be considered.
Injury sometimes manifests as the worsening of a medical condition, the need for new or further treatment, and unexpected or unreasonable complications. Consider a patient with cancer, for example. A doctor does not cause cancer; however, their delayed diagnosis might negatively affect the patient’s prognosis, required additional treatment, or worsen the outcome of their condition.
In a medical malpractice case, the burden of proof for causation lies with the plaintiff. Although one might think that causation would be straightforward and simple to prove, this is not often the case. Certain procedures, surgery for example, carry accepted risks. Even with the accepted medical practice, complications occur. It makes proving that the medical provider’s negligence caused the injury a sticky or, at best, gray area.
Furthermore, the plaintiff in a medical malpractice case must prove causation by a preponderance of the evidence. The jury must be convinced that it was more likely than not that the defendant’s actions caused the plaintiff’s injury. As with dereliction, a plaintiff’s lawyer will typically call in a medical expert—or several—to testify that the defendant’s actions caused the patient’s injury.
A medical malpractice claim sometimes involves two types of compensatory damages: actual damages and general damages.
Actual damages refer to economic losses the patient experienced as a result of their injury. While every case is different, actual damages, also referred to as economic losses, include medical and hospital expenses, physical therapy, prescription drugs, and lost income from missing work.
General (non-economic) damages cover the harder-to-quantify losses that the patient suffers because of their injury. These damages include mental anguish, pain and suffering, disfigurement, loss of consortium, and emotional distress. Diminished potential future earnings sometimes factor into a plaintiff’s damages as well.
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The Help of a Medical Negligence Lawyer on Your Case
Cases involving medical negligence and the medical malpractice lawsuits that may result are among the most complex legal matters. . Doctors and hospitals tend to be well prepared to defend themselves against these claims.
However, if you sustained an injury due to medical negligence, you deserve compensation. The attorneys at Friedman & Simon, L.L.P. will work to establish the four D’s of medical negligence for your case with compelling evidence. We will calculate your damages, file your claim, and negotiate with insurers. If necessary, our team is able to file a lawsuit on your behalf to recover your damages in civil court.
We are advocates for the injured people of New York, and we will work to represent your rights and your interests. Furthermore, because we work on a contingency fee basis, you pay us nothing unless and until we win your case.
Call Friedman & Simon, L.L.P. today at (516) 932-0400 for a free consultation.