How does New York determine medical negligence?

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 do I determine if a death in the family is a ‘wrongful death’?

The death of a person resulting from the legal fault of another is deemed a ‘wrongful death.’ In a criminal case a wrongful death is considered to be murder while in a civil case a wrongful death is the direct result of another’s carelessness.  Individual state law determines which family member can file for a wrongful death lawsuit. While in all states a living spouse or child can file a wrongful death lawsuit, some states limit siblings, grandparents, and extended family from doing so. The surviving qualified family members may sue for ‘wrongful death’ if their family member’s death was caused by another’s misconduct or negligence and has impacted the surviving family emotionally or financially. However all states have statutes of limitation regarding the time period in which a family member can file a wrongful death lawsuit. In most cases the lawsuit must be filed within two years of the date of the death. However this time period can be extended if the misconduct is discovered after the date. If this time period is exceeded the family member lose the right to file a lawsuit.

In order to determine if the death of a family member was a ‘wrongful death’ the family must establish the death was a direct result of another’s negligence, deliberate action or misconduct. Additionally the family must affirm they have been impacted emotionally or financially as a result of the family member’s death. Lastly in order for a wrongful death lawsuit to be brought, someone would need to be appointed as an executor or an executrix of the estate. In such cases where a minor is concerned the court will require a guardian be appointed to seek the minor’s best interest.

Lawsuits regarding wrongful deaths can be brought against individuals, companies, government bodies, and institutions. Wrongful deaths can include incidents such as a driver in a motor vehicle accident, a hospitals negligence regarding a patient’s care, or a government agent’s failure to produce essential road signage all resulting in fatal outcomes. Cases vary but families may receive compensation for damages including lost wages, loss of future income, emotional distress and other monetary losses as a direct result of the family member’s death.

If you wish to learn more about wrongful death, speak to one of our experienced and professional attorneys to help you understand your rights.