Malpractice Can Occur At Anytime

Medical Malpractice Mistakes

As a normal part to any surgery, patients are sent home or to the care of other medical professionals with instructions for post-surgical care.  These instructions can be quite detailed, outlining exactly what the patient should or shouldn’t do.

A case titled, Fink v. DeAngelis, offers some guidance.  A recent decision on this case was released on May 21, 2014 by the New York State Appellate Division, Second Department.

The plaintiff, Henry Fink, completed knee surgery.  Doctors were worried that an infection was present at the surgical site and therefore placed Fink on antibiotics.  Subsequent tests came back negative for infection and the medication was discontinued.

Upon discharge from the hospital to a rehabilitation facility, Fink was prescribed another antibiotic.  This antibiotic ended up causing Fink intestinal damage.  He sued the doctor for medical malpractice because an unnecessary prescription was given to him and that drug caused injury.  Unfortunately, Fink died but the case continues by way of his heirs.

As typically happens, both sides introduced expert testimony to prove their respective positions.  As you might predict, such testimony was conflicting.  Nonetheless, the court denied the defendant’s motion for dismissal, stating, “the plaintiff…raised a triable issue of fact as to whether the prescribing of Levaquin was contraindicated by normal practice”.

Experience medical malpractice attorneys know that the court’s language here is important.  This is because a plaintiff, in order to win a medical malpractice case, must offer proof that the defendant doctor did not act in accordance with the standards in the profession.  A plaintiff would use expert testimony to show what those standards are and how those standards were breached.

Additionally, the plaintiff must prove that the breach was the actual and direct cause of his or her injuries.  Of course, in order for a plaintiff to receive compensation, the plaintiff must prove what those injuries were and that those injuries gave rise to damages.

“Damages” is a basic legal term that refers to losses incurred by the plaintiff.  Medical expenses are a compensable damage.  So too are lost wages, lost future income, rehabilitation costs, costs for vocational training if the plaintiff cannot perform his or her previous occupation, and the like.  Pain and suffering is also included under the damages umbrella.  While not a “loss” so to speak, pain and suffering is a compensable result of an injury.

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