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How does New York determine medical negligence?

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Medical negligence, also known as medical malpractice is defined as improper or negligent treatment of a patient by a doctor, nurse, or other medical professional.  Law suits involving medical negligence are seen as a way to police the medical profession. If you are alleging medical negligence, you must prove four elements; first you must prove that a duty of care was owed by the medical professional. Second the standard of care was violated, third the injury you are alleging is compensable, and fourth the injury was caused in fact and proximately caused by the substandard conduct.

The first element is not difficult to prove as physicians or medical professionals owe a duty of care to whomever they treat. Causation can be a difficult element to prove, as you must be able to show sufficient evidence that the actions taken by the physician caused the alleged injury. Most physicians allege that injuries are not caused by their own negligence but by another contributing factor such as pre-existing physical conditions. The proof of injury can include both the physical and emotional effects of the treatment.  The amount of money the injury is worth is usually highly debated. There are also different standards that they apply in different states. Most states apply a standard where they look at the practice of local medical professionals; this is referred to as the locality rule. There are other states that look to the national standard of the medical profession.  If a medical professional has failed to follow these standards then this could be evidence of negligence.

Some states will not determine that a physician has been negligent if the physician or medical professional had to choose between different methods of treatment or in diagnosing a condition. This is referred to as the respectable minority rule. New York State uses the locality rule, where a doctor must exercise a reasonable degree of skill and knowledge as possessed by others who practice the profession within that geographic region. A doctor must use his or her best judgment and superior knowledge and skill even if it exceeds that of other doctors in the region where he or she practices (Nestrowich v. Ricotta, 767 N. E. 2d 125 (N. Y. 2002). If you think you may have a medical negligence claim, it is important that you contact an attorney well versed in medical negligence to help you assert your rights and obtain adequate compensation for your discomfort or loss.

How Can I Seek Damages from Defective Drugs?

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Do you believe you have been injured as a result of defective medication? Has a doctor told you that you are suffered injuries as a result of certain medication you are or have been taking?

Defective drugs

imagesWhile many drugs are on the market to help alleviate pain and other symptoms, some drugs cause serious adverse side effects. If there is evidence that the manufacturer of the drug knew about adverse side effects and failed to warn consumers about these, you may be entitled to recover damages if you took that drug and suffered adverse side effects.

Determining liability

Defective drug cases are difficult to prove for a variety of reasons. One of the most difficult aspects to overcome is proving that a particular drug was the cause of an injury. In many cases, FDA warnings may help with this, but an FDA warning is not definitive indicator of liability. Another obstacle to overcome is the statute of limitations. Every state has a strict time limit within which a claim for injuries must be brought. If a claim is not made within the statute of limitations window and no exception exists, you may be forever barred from making a claim for your injuries.

Causes of action

The three major causes of action against drug manufacturers are failure to warn, manufacturing defect and design defects. Failure to warn is where the manufacturer fails to warn consumers of a particular danger. Manufacturing defects which result in injury due to a flaw in the manufacturer process, which results in a product which does not conform to the manufacturer’s specifications, are a second cause of action which can be brought. Finally, a design defect claim can be made where there is a flaw in the design of a drug which makes it unreasonably dangerous.

Determining if you have a claim

If you believe you have been injured as a result of a defective drug, it is important to seek medical attention right away. Health and safety should always be your number one priority. After you obtain the appropriate medical attention, you should contact an attorney to see if you may have a claim against the manufacturer of the drug. It is important to note that claims regarding defective drugs are difference than medical malpractice claims where you believe a doctor has not met the standard of care required.

Each individual’s circumstances are unique and if you are interested in a consultation, please do not hesitate to contact our office at 212-353-8700.