The Medical Malpractice Case - A Difficult Area of Litigation
September 26, 2012 | Former NYS Supreme Court Justice Leonard L. Finz
The hospitals and doctors throughout our state and nation treat many thousands of patients on any given day. Not always is the outcome of such treatment beneficial to the patient who may suffer significant injuries that were unexpected following the treatment rendered. The fact that there is a poor outcome or bad result however does not in and of itself make the hospital, its staff, or treating doctor’s automatically liable to the injured patient. For the patient who has suffered a bad result from a hospital and/or medical treatment to have a cause of action, the patient who by law has the burden of proof, must establish that the defendant charged committed medical negligence, or what is commonly called medical malpractice.
Essentially, the hospital or physician is not a guarantor of the outcome of its treatment. As such, the law does not place such a burden upon the hospital or physician to act in a manner other than that which is within the standard of care of hospitals, or the medical specialty of the physician. Thus, for patients who seek damages in a medical malpractice action to prevail, he or she having the burden of proof must establish by a fair preponderance of the credible evidence:
1) That the hospital or physician’s treatment was a departure from good and acceptable medical practices; and
2) That the departure was the proximate cause of the injury claimed.
As to “1” above, “departure”, the patient must establish through expert testimony or other relevant proof, that the act or series of acts committed by the hospital or physicians, were performed below the standard of care of hospitals or physicians within the accepted hospital or medical community.
As for “2” above, “proximate cause”, the patient has the burden of proof to establish that the “departure” was a substantial factor in causing the injury claimed.
The claims made by the patient plaintiff and the proof offered to support those claims, can be expected to be vigorously defended by the hospital and/or physician attorneys who will offer proof through their medical experts that, either there was no “departure” from good and accepted practice, or that even if there was, the “departure” was not the “proximate cause” of the injury claimed.
Most medical malpractice cases will ultimately move forward to a trial by jury, but there are those in which the defendants will move for summary judgment, in essence stating that the patient plaintiff has failed to make out a prima facia case in its complaint, or after discovery (depositions, medical affidavits, medical exchanges, etc.) to the effect that the case should be dismissed by the court as a matter of law since there is no triable issue to be decided by a jury.
Such was the situation in a recent case, Eisner v. Arsht, published in the New York Law Journal on September 11, 2012, as decided by Justice Schlesinger, Supreme Court, New York County. In the Eisner case, a twenty-three year old suffered a fractured tibia when injured in a sporting event. She was taken to hospital “A”, diagnosed by doctors and then transferred to hospital “B”, where surgery was performed by other doctors. It was found post-surgery that she suffered a “dropped foot” a serious neurological injury that is caused by a “compartment syndrome” which it was claimed was not discovered in time by either the hospitals or doctors involved.
All defendants moved for summary judgment and presented medical affidavits in support of their position that none were responsible for the “compartment syndrome” suffered by the plaintiff. The court in its decision dismissed the case against hospital “A” and the physicians of that hospital, and denied the motion as to hospital “B” and its physicians.
Once again, the case draws attention to the difficult litigation procedures in this area of practice. In fact, attorneys are almost universal in their agreement that medical malpractice cases require a high degree of trial experience and expertise. Not only must the trial attorney be extraordinarily versed in the medical issues involved, but must also possess the advocacy skills to present those oftentimes extremely complex medical issues in a manner that will be readily understandable to a lay jury. The plaintiff’s trial attorney must also be at the helm of all of the relevant literature, the medicine and science involved the clinical tests if any, the relevant standards of medical care, and the complicated anatomy and biological function of the human body. Unquestionably, the plaintiff’s trial attorney will encounter highly experienced defense counsel in which event their experience and expertise must not only be matched, but wherever possible, exceeded by the plaintiff’s trial attorney in order to produce a successful result in a very difficult and vigorously defended area of litigation.
Additional Info: Medical Malpractice
Tags: Medical Malpractice, Medical Negligence, Hospital, Doctor, Departure, diagnosed, surgery