Medical Malpractice: Proving that a Doctor Deviated from Accepted Standards of Medical Care

In New York, as in many other states, proving a case of medical malpractice requires that a person prove two points:

  1. That the doctor or medical professional deviated from accepted standards of medical care; and,
  2. That the deviation caused substantial harm.

The standard for proving medical malpractice is high. Not every bad outcome constitutes medical malpractice and sometimes a doctor’s treatment deviates from good and accepted practice, yet that deviation does not result in a worse outcome. If you believe that you or a loved one has suffered from medical malpractice in New York, you should consult a New York attorney experienced with medical malpractice. Most medical malpractice attorneys will evaluate your case free of charge.

Assessing a Medical Malpractice Case

I read in the newspapers about lawyers who immediately rush to file lawsuits claiming millions of dollars in damages. In reality, they do their clients a disservice by filing charges before they fully assess the case. A rush to file a lawsuit can lead to errors, including failing to sue the correct person and failing to identify the correct claims and to present them in a way that best serves the client’s case.

I have developed a thorough process to evaluate each medical malpractice case so I can advise my clients on the best actions for them to take and, if we pursue a medical malpractice lawsuit, prosecute the strongest case possible. I begin by thoroughly interviewing my client and family members if necessary. It is important to understand what happened from the victim’s point of view and important to understand what impact the medical malpractice has had on their lives.

Reviewing Medical Records

I collect all the relevant medical records. Retrieving medical records should be a simple process, but often requires diligent follow up as some providers illegally resist releasing records. I then organize the medical records and analyze them.

I consult with a highly regarded nurse reviewer who helps in this process. In this initial review, we can identify the steps taken (or not taken), procedures and tests performed (or not performed) and the patient outcomes. The medical records are very revealing and usually hold the essential information for a potential case. By this point, we can usually determine if medical malpractice has occurred.

In a recent case, we were able to identify falsified records where nursing home staff made entries in the records after the fact in an attempt to cover up medical malpractice. The ability to identify those falsified entries depended upon the very careful review of the medical records and the years of experience that my nurse reviewer and I have in assessing medical records.

Receiving a Medical Opinion

After assessing the medical records with the nurse reviewer, I provide a preliminary assessment to my client and we decide on the next steps. If the record review suggests that medical malpractice did occur, I take the following steps:

  • I consult with a physician to review the records and give me a verbal opinion.
  • I work with the nurse reviewer to identify any published medical standards that may apply to the case. For example, many professional associations, such as the American Academy of Pediatrics, publish standards that doctors should follow in treating a particular condition.
  • I conduct a case review to find similar cases.

If the consulting physician finds malpractice, I then prepare a full assessment of the case for my client. This assessment is a detailed written review of the facts of the case, of the liability arguments and the damages. It includes both a trial and a settlement strategy. I review this assessment with my client and incorporate any feedback from my client.

Filing a Medical Malpractice Lawsuit in New York

At that point, we are ready to file the lawsuit. Before doing so, I will approach the other aside about a settlement. Sometimes a defendant will agree to settle a suit at this point because it enables them to avoid substantial legal fees.

New York medical malpractice law requires the attorney to file a certificate that he or she has consulted with a medical expert who verifies the case meets both requirements. Therefore, we cannot file the lawsuit unless and until we have thoroughly reviewed the medical record and received a medical opinion that medical malpractice did occur.

Proving a Variation from Good and Accepted Medical Malpractice

Winning a medical malpractice case depends on proving to the jury that a doctor (or other medical professional) varied from accepted standards of care. Doing so requires a combination of substance and showmanship or, in other words, science and art. We build our case around the substance and science of the medical review and professional opinions. We win the case by presenting that information in a persuasive manner. I rely on the following approach:

  • Presenting expert testimony: We will have doctors testify about the variation form good and accepted practice. The doctor must have the same specialty as the doctor on trial, so if the case involves an orthopedist, then we will have an orthopedist provide expert testimony. I work with a group of professionals who possess strong credentials, proven expertise and the ability to present complex medical information in ways that juries can readily understand.
  • Presenting the medical records: We will walk the jury through the medical records to both document our case and to tell the story of what happened. Juries need to see the records to verify what transpired, but they need to hear a story to both understand and believe.
  • Presenting diagrams, photographs and other presentation materials: Court proceedings can be dry and very long. Juries are often surprised because they see the fireworks that occur in TV courtroom dramas. I work with experts to enliven the proceedings and to make clear our case by presenting photos, diagrams and other presentation materials. Many jurors want visual evidence to understand a case.
  • Cross-Examining the Defendant: I usually call the defendant doctor before calling my expert doctor. I want to let the defendant lay out exactly what he or she did or failed to do so that the expert testimony will show how they deviated from standard medical practices.

Pursing Medical Malpractice Cases in New York

In recent years, medical malpractice lawsuits have gained notoriety. Some have claimed that medical malpractice lawsuits have raised medical costs for everyone. The facts suggest otherwise – as awards paid in medical malpractice cases have declined, medical malpractice insurances costs that doctors pay have risen.

Medical malpractice cases are very important to me. I listen to patients and families who have suffered great hardship and their stories can be very emotional. I often need to tell patients that they may have suffered a bad result, but they do not have the grounds for a medical malpractice case. I never rush to judgment. If I believe that medical malpractice occurred, I conduct a through evaluation before drawing any conclusions.

If I do find that medical malpractice occurred, I fight as hard as I can for my clients. They deserve justice and compensation for their damages. Our medical system depends on us holding doctors accountable for their malpractice. The vast majority of doctors do a great job providing medical care, but when medical malpractice occurs, my clients depend on me to bring them justice.

I hope you found this information helpful. Please email me if you have comments, questions or would like assistance with a medical malpractice case. You can also visit my website or read more on my blog, New York Law Thoughts.

Carol L. Schlitt
New York Personal Injury Attorney

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.