What is Medical Malpractice?

Medical malpractice is negligence committed by a professional health care provider--a doctor, nurse, dentist, technician, hospital or hospital worker-whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. Most medical malpractice actions are filed against doctors who have failed to use reasonable care to treat you. The profession itself sets the standard for malpractice by its own custom and practice. Historically under the so-called "locality rule," a doctor was required only to possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified physicians in the locality, or similar localities, in which he or she practiced. But today the trend is toward abolishing such a rule in favor of a national standard of practice.

Especially in the 1980s, doctors and members of the insurance industry said there was a "malpractice crisis," with spiraling insurance premiums and unreasonably high jury verdicts. As a response to that, some states passed laws capping damage awards, limiting attorneys' fees and shortening the time period in which plaintiffs could bring malpractice suits. Some states instituted no-fault liability for malpractice claims, or developed arbitration panels to hear medical malpractice claims before they could be filed in court to be determined by a judge or jury.  Other "tort reforms" are often discussed, including reducing recovery for "pain and suffering" in malpractice lawsuits and reducing damages to take into account payments from insurance and workers' compensation.  New York State has not instituted caps on damage awards.

Talk to us here at The Law Office of Cohen & Jaffe, LLP if you think you have a medical malpractice case.  The consultation is free. Tell us exactly what happened to you, from the first time you visited your doctor through your last contact with him or her. What were the circumstances surrounding your illness or injury? How did your doctor treat it? What did your doctor tell you about your treatment? Did you follow your doctor's instructions? What happened to you? Answers to these and other relevant questions become important if you think your doctor may have committed malpractice.

Like other personal injury claims, the case will either be settled or go to trial, usually before a jury. A jury will consider testimony by experts--usually other doctors, who will testify whether they believe your physician's actions followed standard medical practice fell below the accepted standard of care. In deciding whether your heart surgeon was negligent, for example, a jury will be told to rely on expert testimony to determine what a competent heart surgeon would have done under the same or similar circumstances. A specialist, like a heart surgeon, is held to a higher standard of care--that of a specialist-- than would be expected of a non-specialist.