Medical Malpractice Cases Must Be Certified By A Medical Professional Prior To Commencing A Lawsuit

As a potential victim of medical malpractice, you may not understand what happened and whether or not you have a claim. You likely went to the healthcare professional complaining of a condition or ailment, and you may or may not have had that issue resolved. It may have gotten worse, or a new condition may have popped up after being treated. You go to a lawyer because you are not sure what happened, but you believe something may not be right and you want to get your case reviewed.

But can a lawyer really tell you whether or not a doctor or other healthcare professional committed malpractice?

Yes, and no.

Yes, a lawyer can compare the facts of your case with other cases he or she may have handled. This is because the lawyer would have some experience in that area of medicine and be able to determine what the standard of care is and whether the healthcare professional may have violated the standard of care. Additionally, the lawyer will know the law and some common instances of medical negligence which constitute medical malpractice. For instance, where there is a lack of informed consent, or pulled the wrong tooth, or severed a nerve.

But no, a lawyer cannot commence a medical malpractice action alone. Because there is a standard of care, and a lawyer is not a medical professional and cannot provide expert testimony as to what the standard of care is, a medical professional is needed. Such medical professional generally needs to be in the same specialty or discipline as the potential defendant.

This medical professional will conduct a review and advice the lawyer whether there is a cause of action. The medical professional will advise the lawyer of the standard of care, what the deviation from the standard of care is, and that the deviation caused some damage to the victim. The lawyer will then submit a certificate of merit noting that the lawyer spoke with a medical professional who has reviewed the records and opined there is a deviation in the standard of care. This certificate of merit is required by New York law.

Therefore, any potential victim of medical malpractice must have his or her case certified by a lawyer who has consulted with a medical professional (a doctor) who certifies there is merit to the claims by the victim. This is required and necessary to commence a medical malpractice case in New York.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com. You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com