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Two competing studies have painted a bleak picture of medical malpractice in the U.S. The first study, done by the McGill Office for Science and Society in 2000, suggested that medical errors were the cause of 44,000 to 98,000 deaths every year in America. That would have made medical errors the eighth most common cause of death that year, just edging out car accidents.

The second study, from John Hopkins Medical in 2016, revisited the earlier study and concluded that medical errors were the third-leading cause of death in the country. This study blamed over 250,000 deaths per year on medical mistakes.

While the studies gave very different results, they show the severity of the problem with medical errors. When medical errors arise from malpractice, you have the right to fair compensation. Read on to learn the elements of a medical malpractice claim and the compensation you could receive for your injuries.

How to Assert a Medical Malpractice Claim

Medical malpractice is a form of professional negligence. If you suffer an injury due to the medical care you received, you will file a claim with the provider’s malpractice insurer. The malpractice insurer will expect you to prove four elements for a malpractice claim listed below.

#1 Duty of Care

All medical providers owe patients a duty of care. Some examples of medical providers who can commit medical malpractice include:

• Doctors
• Dentists
• Psychiatrists
• Pharmacists and pharmacies
• Nurses
• Hospitals
• Medical practices and clinics

These healthcare providers must treat you with the same level of care that a reasonably prudent provider would in the same situation. This does not require providers to supply perfect care. Instead, providers only need to supply reasonable care.

#2 Breach of Duty

A breach of the duty of care can happen in a few ways:

Diagnosis Errors

Diagnosis errors happen when a healthcare provider fails to reasonably identify your disease or injury and can take several forms, such as:

• Misdiagnosis: The provider diagnoses you with one condition when you have a different condition
• Delayed diagnosis: The provider misses the early signs of a condition
• Non-diagnosis: The provider diagnoses you as healthy when you have a condition

Diagnosis errors can happen due to mistakes by a provider or lab, and they can also happen when administrators mix up patient files.

Treatment Errors

Usually, treatment errors are the first type of mistake people think of as malpractice. These errors happen while providing medical treatment. Some examples of treatment errors include:

• Wrong site surgery
• Lost surgical sponges and instruments
• Rough handling during examination or treatment
• Failure to treat the correctly diagnosed condition
• Incorrect treatment of a diagnosed condition

Treatment errors often come from unskilled, careless, or even intoxicated healthcare providers.

Communication Errors

Healthcare providers must have informed consent from you/your power of attorney before providing treatment. If a provider fails to communicate before providing care, you might receive unwanted treatment or suffer unwanted effects. Some examples of communication errors include:

• Failing to disclose possible side effects to you
• Failing to discuss alternative treatments or the consequences of non-treatment
• Mis-describing the treatment or its intended results
• Failing to secure your permission to perform the treatment

Medical providers often obtain your signature on a consent form. But even if you consented to the treatment, you may still have suffered a communication error if the provider did not explain the treatment before securing your consent.

#3 Damages Suffered

You must suffer damages to have a malpractice claim. Your losses will include economic and non-economic damages. Economic losses cover the financial impact of your injuries such as:

• Treatment to fix the provider’s error
• Lost wages from being unable to work with your injuries
• Diminished earning capacity from long-term or permanent disabilities

Non-economic losses cover losses in your quality of life due to:

• Pain
• Mental anguish
• Disability
• Inconvenience
• Reduced enjoyment in life
• Diminished life span or survival odds

#4 Resulting Damages

You must prove that the breach of duty (element #2 of a medical malpractice claim) caused your damages. The law requires two forms of causation.

1. The breach was a cause-in-fact of your losses if it fell within the chain of events that ended with your injury. Lawyers often use the “but for” test to identify a cause-in-fact. In other words, you would not have suffered an injury but for the actions of the healthcare provider.
2. The breach was a proximate cause of your losses if your injury was a foreseeable result of the breach. A proximate cause does not require that the provider foresaw your exact injury. It only requires that an injury was a natural and expected consequence of the provider’s actions.

Why You May Need a Medical Malpractice Lawyer

Malpractice cases are rarely simple. They require a careful review of your medical records and other documents before filing a lawsuit. If you are a New York resident, the state’s statute of limitations imposes a deadline to initiate a medical malpractice claim. This deadline is normally 30 months after the alleged malpractice occurred. But, even 30 months is not much time when it comes to investigating and building a successful medical malpractice case.

If you believe you suffered due to the negligence of a medical provider in New York, contact our team at Silberstein, Awad, and Miklos today for a free, no-obligation consultation with one of our medical malpractice attorneys.