Proving Negligence In Medical Malpractice Actions

There are a variety of legal theories under which liability for medical malpractice can be established.  In most cases in New York, lawsuits are filed under the theory of negligence.  The plaintiff’s attorney will attempt to prove that the defendant (doctor, nurse, or hospital) was negligent during their treatment of the patient.  In order to prove this, the plaintiff’s attorney will need to show:

1. A duty was owed by the defendant to the injured plaintiff (a doctor/patient relationship).
2. The duty to the patient was breached when the defendant deviated from the standard of care that was expected among medical professionals.
3. The breach of duty resulted in the patient’s injury.
4. The patient was injured.

In order to prove the negligence, it must be demonstrated by the plaintiff and his or her attorney that the conduct of the defendant did not meet the standard of care expected in their medical field.  For the standard of care to be established, a medical expert qualified in the same field of medicine as the defendant needs to provide testimony that explains the expected standard of care among workers in the same profession.  Additionally, it must be demonstrated that the defendant did not meet the appropriate level of care.

Medication Errors Liability

Healthcare workers can be held accountable if they negligently prescribe drugs or a medical device if the disregard the instructions from the manufacturer, do not prescribe the correct drug, or they administer the wrong dosage, and the patient is harmed as a result.  In some cases, a pharmaceutical company may be held responsible when there is a medication error and the patient is injured because they failed to warn the doctor of dangers or side effects of the drug.

Doctors have an obligation to warn patients of the risks and complications that are associated with the drug he or she is prescribing.  These doctors have extensive medical knowledge and have been supplied with the information about the drug from the manufacturer.  Therefore he or she is generally responsible for determining if a drug is appropriate for a patient.

Informed Consent

Another way of alleging medical negligence is if a healthcare professional fails to obtain “informed consent” from the patient.  Informed consent generally means that a medical provider must inform patients of the possible risks, benefits, and if there are any alternatives with regards to any treatment, surgery, or medical procedure.  The patient’s written consent should be acquired to continue.

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.