Every person has a legal duty to exercise reasonable care whenever his or her conduct presents a risk of harm to others. For example, this legal duty applies to anyone driving a car, requiring him or her to use reasonable care under the circumstances to avoid accidents. If a driver crashes his car into a pedestrian because he was distracted by his texting, then the driver has “breached” that duty by failing to take the same precautions another reasonable and careful driver would have taken in similar circumstances and can be sued for negligence.

Physicians are equally subject to this duty, and they commit medical malpractice when they breach it. Medical malpractice is a form of professional negligence on the part of a physician or other healthcare provider in which a physician fails to abide by the accepted standards of medical professionals. By deviating from those standards, the physician fails to act as a reasonable and careful physician would have acted in similar circumstances.

Medical malpractice is systemic: a Johns Hopkins study estimates that more than 250,000 Americans die each year due to errors by their medical providers¹. Though the frequency of medical errors is alarming, their results can be devastating for their victims. A recent case in which a Connecticut jury ruled in favor of the patient saw one victim of medical errors develop both a necrotizing infection and sepsis². Another case saw an Alabama jury award a patient’s widow $35,000,000 in punitive damages after she successfully proved his providers caused him to overdose on opioids due to medical errors by the provider and the provider’s staff. Despite their successes at trial, the lives of the patients and their families in both cases have been irreversibly altered.

The damage done to your life by medical malpractice can feel overwhelming, but there are steps you can take. If you believe you have been a victim of medical malpractice or if you are being sued for medical malpractice, it is crucial that you contact an experienced medical malpractice attorney as soon as possible. A medical malpractice attorney will be your trusted counsel and advocate throughout this process.

Prior to contacting an attorney, it is important that you preserve your medical records and any other documents or calendars showing that you received treatment, from whom you received it, and where you received that treatment. If you have any emails, text messages, or voice messages from the provider or facility, these can also be critical.

There Are Four Necessary Elements to Establish a Medical Malpractice Claim

A patient must establish (1) the applicable standard of care where he or she received medical treatment, (2) that the defendant-physician breached that standard of care, (3) that the breach of that standard was the proximate cause of the plaintiff’s injury, and (4) that the plaintiff was injured to prove a medical malpractice claim.

Patients Must Prove the Applicable Standard of Care

Determining the applicable standard of care that a physician owes a plaintiff is a two-step analysis. First, a patient must establish a “physician-patient relationship.” A patient can only sue a physician for medical malpractice if the patient’s claim is based on conduct by the physician constituting medical treatment or conduct bearing a substantial relationship to the rendition of medical treatment by the licensed physician to the patient. If alleged conduct constituted medical treatment or bore a substantial relationship to the rendition of medical treatment by the physician, then there was a physician-patient relationship.

Once a physician-patient relationship is established, the physician owes the patient a duty with three aspects: (1) the physician must possess the requisite skill and knowledge as is possessed by the average member of the medical profession in the community in which he practices; (2) the physician must exercise ordinary reasonable care in the application of his professional knowledge and skill; and (3) the physician must use his best judgment in the application of this knowledge and skill³⁴.

If a physician-patient relationship cannot be established, then the patient’s claim can still be brought under a theory of negligence, meaning that the patient is claiming the physician, hospital, or other medical provider breached the standard of reasonable care that a reasonable and prudent person would have exercised under the circumstances⁵.

It is important to note that a patient’s claim against a physician can arise from either medical malpractice or negligence, and the distinction between the two is often unclear⁶. Courts have illustrated the lack of clarity on the issue by holding that one aspect of a patient’s claim was a medical malpractice claim and the other was a negligence claim in the same case. Despite the lack of clarity, this difference can be crucial when deciding whether to dismiss a claim or not, for the statute of limitations is longer for negligence claims than it is for medical malpractice actions⁷.

Proving Medical Negligence: Physician Breaches of the Standard of Care

To succeed on a medical malpractice claim for medical negligence, a patient must prove that the defendant-physician’s conduct was not up to par with that of a reasonable and prudent in the same or similar circumstances as the defendant-physician. More specifically, the patient must use expert testimony to prove the deviation from accepted standards of medical care and to establish proximate cause. These experts are frequently other physicians in the same field as the defendant-physician alleged to have committed medical malpractice¹.

Patients Must Prove the Physician’s Breach Proximately Caused Their Injury

To prove “proximate” causation, the patient must offer evidence from which a reasonable person can conclude that the injury was more probably than not caused by the defendant-physician. Showing causation is a matter of probability, requiring patients to show either (1) it was probable that the chances of the patient surviving had decreased, or (2) the patient’s injuries would have been lessened or avoided entirely with proper diagnosis and treatment. If there are several proximate causes contributing to the injury or death, then patients do not need to prove that the breach was the only, primary, or major contributing factor; they only need to prove that the breach was a contributing factor².

Patients Must Prove Damages

Damages, which are the monetary compensation due to a patient who successfully proves his medical malpractice case, must compensate the patient for both tangible and intangible injuries. Tangible losses include medical expenses, necessary special equipment, supplies, modifications to the patient’s home necessitated by the injury, nursing care, custodial care or supervision, rehabilitation, therapies, lost wages, and compensation for the impairment of the patient to earn income in the future.

Patients may also be compensated for intangible losses such as physical and emotional pain and suffering, including loss of enjoyment of life⁸. Patients can recover regardless of whether they experience physical pain from the injury (such as an injury inflicting severe mental disability) so long as there is some level of cognitive awareness of the pain and suffering.

The Legal Process of a Medical Malpractice Lawsuit

The typical stages of a medical include (1) filing a complaint, (2) discovery, (3) pre-trial motions, (4) trial, and (5) appeals. If you are implicated in a medical malpractice lawsuit—either as a patient or as a defendant—then it is absolutely critical that you have counsel with experience in medical malpractice cases to help you navigate the legal and procedural complexities throughout the lifecycle of your case.

Step One: Initiate the Lawsuit by Filing a Complaint

It is the complaint that initiates a lawsuit by setting forth the alleged medical negligence that harmed the patient with enough particularity to put the defendant-physician on notice of the claim. A complaint alleging medical malpractice must also be accompanied by a “certificate of merit”—a document stating the patient’s lawyer reviewed the facts of the case and has consulted with at least one physician in the medical malpractice action who is licensed to practice medicine. Finally, any action alleging medical malpractice must be filed within the 2.5-year statute of limitations, or it will not be allowed to proceed in the courts⁹.

Step Two: Discovery

An attorney’s effective use of the discovery tools available to patients or defendant-physicians under CPLR 3101(a) and CPLR 3120 can lead to drastically different outcomes in a given case because the effective utilization of discovery tools will uncover evidence relevant to the current claims, assertions made by the defense, and the value of the case in damages. When something is “discoverable,” that means that the parties are obliged to provide it to opposing counsel in a lawsuit. In medical malpractice lawsuits, CPLR 3121 governs discovery and is interpreted broadly to require “full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The rule is interpreted liberally, and the only limitations on disclosure are whether the material would be useful¹⁰¹¹. The broad interpretation of this rule could lead to patients being required to turn over private, sensitive, or embarrassing information about themselves in the process of litigating a medical malpractice suit, and counsel should advise their clients of this possibility.

Step Three: Pre-Trial Motions

After the discovery phase of a lawsuit is over, attorneys begin to look towards pre-trial motions. These can fall into several categories, but motions for summary judgment and motions in limine are the most prominent categories.

Motions for summary judgment are known as “dispositive motions.” Essentially, a motion for summary judgment is a motion supported by affidavits, deposition transcripts, documents, or other evidence arguing that there is no issue as to the facts of the case that would require a trial to adjudicate, and judgment may be granted by the court in favor of one party as a matter of law¹². Effectively, motions for summary judgment tell the court, “Here are the facts supported by these documents, affidavits, and deposition transcripts. There is no need for a trial because opposing counsel has not provided evidence contradicting the facts we have put forth in our motion. We win this case because the law works like this on these facts.”

As trial approaches, parties will file motions in limine. A motion in limine is a motion made just before trial arguing that certain evidence is inadmissible and not to be referred to or offered at trial¹³.

Parties may file what is known as a Frye motion if the suit is filed in New York state court. Frye motions are another type of evidentiary motion, but they differ from a motion in limine in that a Frye motion challenges the sufficiency of an expert witness’s theory in the case¹⁴. Frye motions effectively state that an expert witness may not testify because his theory is not generally accepted in the medical community. Due to the crucial nature of expert testimony in medical malpractice cases, a successful Frye hearing can determine the outcome of the case.

Step Four: Trial

Most cases never reach trial, for they will end in dismissal, settlement, or in summary judgment most of the time. If a case does make it all the way to trial, then parties will generally give opening statements, put on witnesses, allow the opposing side to cross-examine those witnesses, and give closing arguments. The “plaintiff”—which will be the patient alleging medical malpractice—will make his opening statement and put on his witnesses first. The defendant-physician will put on his evidence after that. Once the jury has heard all of the evidence, a verdict must be rendered by no less than five-sixths of the members of the jury¹⁵.

Step Five: Appeals

Generally, parties can appeal any number of issues in a case, but parties commonly appeal the court’s rulings on summary judgment, Frye motions, and the trial court’s rulings on issues that arose at trial before the jury handed down its verdict. Though there may have been a verdict or a dispositive ruling in the case, settling a claim while it is on appeal is still possible.

Competent Legal Representation is Crucial to Navigate the Legal Process

Medical malpractice cases are deeply complex matters in terms of their subject matter and in their lifecycles, and it is crucial that you place your case in the hands of experienced, effective counsel. If you are wondering if you have been injured by a medical provider’s malpractice, then it is crucial that you contact a medical malpractice attorney as soon as possible.

Case Studies & Legal Research Play a Vital Role

Given the complexity of medical malpractice claims, case studies and legal research will prove to be pivotal in a given case. In the context of medical malpractice litigation, “case studies” are best understood as prior legal decisions in which the conduct of defendant-physicians was found to deviate from the standard of care and that it caused a compensable injury to the patient. Case studies are pointed examples that help a litigant argue that a defendant-physician’s conduct was based on the results of a case study, and—because the defendant-physician’s conduct was identical or similar—it is medical negligence in this patient’s case as well.

While there are innumerable cases detailing when a physician’s conduct constitutes medical malpractice, the following examples are poignant:

• A defendant-physician was found to have deviated from the standard of care by prescribing Oxycontin to a patient while failing to keep proper records of the patient’s prior narcotic prescriptions and failing to recognize the patient’s withdrawal symptoms due to his use of Oxycontin;
• A defendant-optometrist was found to have deviated from the standard of care by failing to immediately refer a person with that patient’s condition to an ophthalmologist, thereby causing the patient to lose an eye; and
• A defendant-surgeon deviated from the standard of care in leaving a sponge in the patient’s abdomen because the sponge was readily discernable if the defendant-physician had exercised accepted surgical practice.

Each of these cases was proven using expert testimony and can, in the future, be a building block of another medical malpractice case because it sets an important precedent in the world of medical malpractice litigation. Case studies like those listed above are powerful evidence to prove or defend against a medical malpractice claim.

Conclusion

Medical malpractice lawsuits are complex matters requiring extensive legal research and expert witness testimony based on case studies. The steady hand of an experienced medical malpractice attorney is crucial for navigating the legal process and building a case. Do not attempt to self-diagnose yourself; if you think you’ve been a victim of medical malpractice, reach out to a medical malpractice attorney today. While this article intends to be informative, it is limited in that it is not being applied to the specific facts of any case and has no expert witnesses ready for trial. Application to specific facts and preparation of an expert witness to bring a medical malpractice claim is the role of an attorney.

Footnotes

1. McMains, Vanessa. “Johns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.” HUB, May 3, 2016. Link
2. Cockayne v. Bristol Hospital, Inc., 210 Conn.App. 450, 454-55, 270 A.3d 713, 720-21 (Conn. App. Ct. 2022).
3. Vega v. Crane, 162 A.D.3d 167, 170, 75 N.Y.S.3d 760, 763 (4th Dep’t 2018); Woolley v. Coppola, 179 A.D. 991, 992, 578 N.Y.S.2d 729, 730 (3d Dep’t 1992).
4. Pacio v. Franklin Hosp., 63 A.D.3d 1130, 1131, 882 N.Y.S.2d 247 (2d Dep’t 2009). See also Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787, 650 N.Y.S.2d 629, (1996) (“The distinction between medical malpractice and negligence is a subtle one for medical malpractice is but a species of negligence. No rigid analytical line separates negligence and malpractice.”).
5. Goldberg v. Horowitz, 73 A.D.3d 691, 693, 901 N.Y.S.2d 95 (2d Dep’t 2010).
6. McMains, Vanessa. “Johns Hopkins Study Suggests Medical Errors Are Third-Leading Cause of Death in U.S.” HUB, May 3, 2016.
7. Rucigay v. Wyckoff Heights Medical Center, 194 A.D.3d 865, 866, 149 N.Y.S.3d 148, 151 (2d Dep’t 2021).
8. Cygan v. Kaleida Health, 51 A.D.3d 1373, 1374, 857 N.Y.S.2d 869 (4th Dep’t 2008).
9. Heraud v. Wiessman, 276 A.D.2d 376, 714 N.Y.S.2d 384 (1st Dep’t 2002).
10. Nestorowich v. Ricotta, 97 N.Y.2d 393, 740 N.Y.S.2d 668 (2002).
11. Friedmann v. New York Hospital-Cornell Medical Center, 65 A.D.3d 850, 884 N.Y.S.2d 733 (1st Dep’t 2009) (Catterson, J. dissenting) (“It is equally possible to surmise from the plethora of seemingly arbitrary and inconsistent determinations that courts have sometimes used the lack of a bright line rule in order to grant a plaintiff his/her day in court rather than dismiss on the grounds of an untimely pleading, or as in this case, the absence of a doctor’s affidavit.”).
12. Smith v. Pasquarella, 201 A.D.2d 782, 607 N.Y.S.2d 489 (3d Dep’t 1994).
13. Stanley v. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468 (2d Dep’t 1986).
14. McAlwee v. Westchester Health Associates, PLLC, 163 A.D.3d 549, 550, 80 N.Y.S.3d 401, 403 (2d Dep’t 2018).
15. Id.
16. Borawski v. Huang, 34 A.D.3d 409, 410, 824 N.Y.S.2d 362 (2d Dep’t 2006).
17. Id.
18. Speciale v. Achari, 29 A.D.3d 674, 815 N.Y.S.2d 157 (2d Dep’t 2006).
19. Galioto v. Lakeside Hosp., 123 A.D.2d 421, 422, 506 N.Y.S.2d 725 (2d Dep’t 1986).
20. McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937 (1989).
21. Id.
22. Acevedo by Rodrigeuz v. New York City Health & Hospitals Corp., 251 A.D.2d 21, 673 N.Y.S.2d 656 (1st Dep’t 1998).
23. CPLR § 3013; Fassnacht v. Hartman, 67 A.D.2d 676, 412 N.Y.S.2d 179 (2d Dep’t 1979) (holding that the complaint failed to meet the minimum pleading requirements of CPLR 3013 because it did not reference times, types of treatment that constituted the medical malpractice or negligence, and failed to state and number separate causes of action).
24. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468.
25. CPLR § 3121; Hoenig v. Westphal, 52 N.Y.2d 605, 422 N.E.2d 491 (1981).
26. Id.
27. CPLR § 3212.
28. Brill v. City of New York, 2 N.Y.3d 648 (2004).
29. Maliqi v. 17 East 89th Street Tenants, Inc., 880 N.Y.S.2d 917, 921 (Sup. Ct. 2009).
30. Lara v. New York City Health and Hospitals Corp., 305 A.D.2d 106, 757 N.Y.S.2d 740, 741 (1st Dep’t 2003).
31. Id.
32. CPLR § 4113.
33. Vito v. North Med. Family Physicians, P.C., 16 A.D.3d 1039, 1040, 791 N.Y.S.2d 797 (4th Dep’t 2005).
34. Weinstein v. Daman, 132 A.D.2d 547, 549-50, 517 N.Y.S.2d 278 (2d Dep’t 1987).
35. Bell v. Agarwal, 55 A.D.3d 1310, 1311, 864 N.Y.S.2d 590 (4th Dep’t 2008).