Asthma Mistreatment Is Medical Malpractice

Medical Malpractice Mistakes

Litigation founded in medical malpractice is tough, lengthy, and will commonly involve multiple motions, decisions, and orders from multiple courts.

Experienced medical malpractice attorneys aggressively pursue the injured plaintiff’s rights from start to finish, even in the face of adversity, unfavorable interlocutory decisions, and will appeal to higher courts when justice so requires.

One reason for this is due to the attorney’s responsibility to zealously advocate on the plaintiff’s behalf.  Plaintiff’s should not fear the process itself because the experienced medical malpractice attorney knows what to expect and will calmly and confidently push back against unwarranted unfavorable decisions, eventually prevailing on behalf of the plaintiff.

A recent court case in New York, Petrik v. Pilat, is a fitting example of how an initial decision went against the plaintiff, but the experienced attorney fought back, eventually getting a favorable decision from an appellate court.

The appellate court in this instance was the State of New York Supreme Court, Appellate Division Second Judicial Department.  The decision was just issued on July 16, 2014.

The facts of the case involve the plaintiff entering the hospital complaining of an asthma attack.  Asthma was an ailment with which she had lived for a long time.  The defendant doctor treated the asthmatic patient and the patient was discharged.  Disturbingly, however, the patient died at home, not even ten hours after her discharge.

The lower court dismissed the medical malpractice claim and the plaintiff appealed to the higher court, praying for favorable relief from the lower court’s decision.  Indeed, the plaintiff found the relief sought after.

Here is why the court found in favor of the plaintiff.  The defendant did indeed produce the testimony of an expert that tended to show that the defendant did not deviate from accepted standards of medical practice, but the plaintiff put forth sufficient evidence in support of a medical malpractice finding.  In fact, an expert for the plaintiff showed evidence that the defendant did not get a complete medical history on the plaintiff and that the doctor did not measure how well the patient was exhaling before she was discharged.  Moreover, the defense did not disprove causation; that the doctor’s breach did not cause the patient’s death.

This doesn’t mean that the plaintiff will automatically win.  The plaintiff must always present facts and evidence sufficient to prove that the doctor owed the patient a duty, that the duty was breached, that the breach caused the injury, and damages.  While the defense will introduce contrary evidence, the defense doesn’t automatically win either.

Once all of the evidence is put forth, if reasonable minds can differ, the jury must decide on the facts of the case.  This is ultimately what the appellate court was saying here; therefore the plaintiff has the right to have her case decided upon by a jury.

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  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at