Who Can Be Sued for Malpractice?

Howard Raphaelson
Partner, Attorney
Who Can Be Sued For Malpractice

Imagine waking up from an operation and discovering that your surgeon has amputated your healthy leg and left your diseased leg is still attached. That happened to a 51-year-old Florida man in 1995. The case made national news and was the inspiration for surgeons and hospitals across the country to change some of their pre-surgical practices. Unfortunately, those changes have not prevented medical malpractice from still occurring. A news organization recently published an article revealing that in recent years, New York City paid $123 million to settle medical malpractice claims against its public hospitals. That, of course, does not include any information about medical malpractice claims against private hospitals or individual health care providers. Understanding what is medical malpractice and who can be the subject of a medical malpractice lawsuit is critical to protecting your legal rights.

Understanding Negligence vs Malpractice

Lawsuits for general negligence are based on allegations that a person acted, or failed to act, with the ordinary care that a reasonable person in the same situation would have acted. There are certain elements that must be met, including proving the person you claim was negligent  had a duty to act, and breached that duty by acting without due care or failing to act altogether, which caused harm to the plaintiff who suffered damages as a result.4Medical malpractice is a form of negligence, and has been defined as “any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.” 4 A member of the medical community, in the specific discipline as the provider alleged to be negligent, must testify that the care that was provided fell below the standard of care in the community. This is how your case will be evaluated whenever you are using a doctor for medical negligence.

Suing a Hospital for Negligence: Doctors, Physicians, & Nursing Malpractice

You can sue the hospital for negligence. Hospitals can be held liable for their own negligence, and can also be held liable for the negligence of their employees under the doctrine of vicarious liability. This means that by hiring the doctors, physicians, nurses, laboratory and x-ray technicians, the hospital assumes liability for any negligence on the part of any of its employees, including its healthcare providers in all disciplines.5 There are different types of medical malpractice.

Operating Room Errors

There are a number of errors that can occur in an operating room.

  • Operating on the wrong surgical site.
  • Performing the operation on the wrong person.
  • Performing the wrong procedure.
  • Leaving a tool or sponge inside the patient.
  • An organ may be punctured, or a nerve or artery severed.
  • The surgical wound may be improperly sutured.
  • The anesthesiologist may not properly administer the anesthesia.

Any one of these errors can result in pain and suffering, extra procedures to repair the damage, or even permanent disability and death.

Diagnostic Errors

Diagnostic errors can take the form of misdiagnosis or a failure to diagnose. Both can have drastic, life-changing results.

  • Failure to diagnose
    A physician’s failure to diagnose a medical condition can be disastrous. In one New York case a young man, a recent medical school graduate, was in an accident and broke his leg and some ribs. It was determined he had a “ bruised lung.” He had just assured his family he was fine when he began having trouble breathing. He ended up in a medically induced coma, which saved his life, but permanently damaged him. That happened in 2004, and the young man, who held so much promise, has been in a vegetative state ever since. His family alleged the hospital failed to diagnose his breathing failure, which was the reason for this unfortunate outcome. NYC settled with the family for $3 million.
  • Misdiagnosis
    When a physician misdiagnoses a medical condition, a treatment that is not needed but administered can be devastating. One woman underwent months of chemotherapy for treatment of breast cancer, which it was later determined she never had.

Birth Injuries

One of the saddest things that can happen is for a baby, who was a normal fetus throughout a woman’s pregnancy, to be damaged during the birthing process. The birthing process is considered to be during labor, delivery, and shortly after delivery. Some of the most common birth injuries include:

  • Injuries from the use of forceps. This can be a relatively minor injury of a dislocated shoulder to a more serious injury of head trauma.
  • The newborn contracts an infection during the birthing process. Some infections are minor, others are life-threatening. The mother’s infection should have been diagnosed before birth so that it would not have been passed on to the baby.
  • Physicians, midwives, nurses, and nurses aides, improperly monitor the fetus oxygen level. This can result in permanent brain damage. In NYC, that is exactly what happened in one recently reported case. The baby now suffers from cerebral palsy, a seizure disorder, partial blindness, and can only breathe with the help of a breathing tube. The hospital settled the case for $8.1 million.
  • Failure to obtain informed consent. Many treatments and procedures come with serious risks. The failure of hospital personnel, including the physician, nurses, or others, to obtain informed consent can result in a medical malpractice claim when patients have an untoward result due to a known risk of the procedure or treatment about which the patient was not informed.

Medication Errors

Anyone who prescribes fills a prescription or administers medication can be liable for medical malpractice. This includes physicians, nurses, pharmacists, technicians for MRIs, and other imaging tests. Some examples include:

  • A physician may have prescribed the wrong prescription, or the right prescription in the wrong dose, or failed to warn about known side effects.
  • A nurse may have administered the wrong medication, or in the wrong dose. A few years ago, it was widely reported that a well-known actor’s newborn twins were administered 1,000 units of a blood thinner, heparin when the normal dose was 10 units. The twins survived, but it was touch and go for a while.
  • A pharmacist may make a mistake in filling the prescription, either giving the wrong medication, or the right medication in the wrong dose, or in making an error in the instructions.

Pharmaceutical Companies

Pharmaceutical companies, meaning those who manufacture medications, are generally not liable to consumers. This is particularly true if they have provided information to the prescribing physicians concerning the risks and side effects of the medication. It is the doctor or pharmacist’s duty to relay that information to the patient.5

Request a Free Medical Malpractice Claim Review

Not every unpleasant outcome amounts to medical malpractice. If you believe you have a claim but are unsure who may be liable, we invite you to discuss your claim with one of our skilled malpractice attorneys. Understanding the strength of your claim is the first step to building a case for compensation. To speak with a Manhattan medical malpractice attorney about your legal options, contact us online or call 212-268-3222 for a free consultation.

Howard Raphaelson
Partner, Attorney
Howard A. Raphaelson founded Raphaelson & Levine Law Firm, P.C. in 1992 after graduating from the Benjamin N. Cardozo School of Law in New York City, NY. With over thirty years of experience as a personal injury lawyer, he has earned a trusted reputation from his peers, judges, and top leaders, including recognition among the top 5% injury attorneys as a “Super Lawyer” (Thomson Reuters) and “New York’s Best Lawyers” (New York Magazine).

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