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Basic Requirements for a Medical Malpractice Claim

Feb 20, 2016 | Medical Malpractice

In 2012, the total medical malpractice payout throughout the US was 12,142, amounting to one claim every 43 minutes. New York ranked number one in the top five states for medical malpractice payouts with an astounding $763,088,250. The medical negligence problem in New York is alarming and is one of the states in the nation where medical malpractice filings remained nearly level.

Medical malpractice occurs when a doctor, or any other medical professional, fails to perform their duties competently and harms a patient. Medical malpractice rules – from when you need to file a lawsuit to whether the doctor at fault should be notified ahead of time – vary from state to state. However, there are some general board categories and principles of rules that apply to most medical malpractice cases.

Basic Requirements

When it comes to medical malpractice claims, one of the most important things that you need to do is prove that such a malpractice did occur. To do this, you need to be able to show:

There was a doctor-patient relationship: First of all, you must be able to show that you had a doctor-patient relationship with the incompetent or negligent doctor. This means that you hired the doctor that you are suing and he agreed to be hired. For instance, you cannot sue a doctor that you overheard giving advice at a coffee shop. That would be ridiculous.

If you began seeing that doctor and received treatment from him, it is easy to prove that you had a doctor-patient relationship. Many times, questions about the existence of the relationship arise when you are not treated directly by a consulting doctor.

The doctor was negligent: Just because your treatment or results do not satisfy you does not mean that a medical malpractice occurred. Your physician must have been negligent with regards to your diagnosis or treatment. To sue for malpractice, you should be able to prove that the doctor harmed you in a way that a competent physician would not have under the same circumstances.

It is not required that the doctor’s care is the best, but "reasonable careful and skillful." The heart of a medical malpractice claim often lies in whether or not a doctor was reasonably careful and skillful. In almost all states, it is required for a patient to present a medical expert to discuss the medical standard of care and show how the negligent doctor deviated from that standard.

The injury was caused by the doctor’s negligence: Because patients that were already injured or sick are involved in many medical malpractice cases, the question of whether the actions of the doctor, negligent or not, actually harmed the patient. For example, if a patient dies after lung cancer treatment, and the doctor did act negligently, it could be challenging to prove that the doctor’s negligence was the cause of death rather than the cancer.

The patient needs to show that it is more than likely that the injury was directly caused by the doctor’s incompetence. Usually, the patient needs to have a medical expert to testify that the injury was caused by the doctor’s negligence.

Specific damages were caused by the injury: Even it is apparent that the doctor performed below the expected standards in their field, the patient cannot file a malpractice lawsuit if they did not suffer any harm. The following are examples of the types of harm that patients can sue their doctors for:

· Physical pain

· Additional medical bills

· Mental anguish

· Loss of income and loss of earning capacity

There is a body of complex rules that regulate medical malpractice laws. These rules vary considerably from state to state, so it is often essential to seek advice or hire the services of a personal injury lawyer who is experienced in medical malpractice cases.

RMFW Law Knows How to Deliver

If you have been injured due to the negligent or incompetent actions of your doctor and want to file a personal injury case, your best option is to talk to the personal injury Rosenberg, Minc, Falkoff & Wolff of RMFW Law at 212 697 9280. The first meeting is free.

We do not charge you anything until the end so essentially we are not paid until you are paid. You never write us a check at all! Give us a call, let’s hear what you have to say.