Medical Malpractice: Sometimes It’s What the Doctor Doesn’t Do June 1, 2010

We often think medical malpractice results from a doctor or health care provider doing something wrong. Sometimes, medical malpractice results from what a doctor fails to do.

A few years back, a fifty year-old man went to his internist seeking assistance in losing weight. The internist put him on phentermine, a weight loss drug that the manufacturer recommended be used for no more than eight weeks. The physician kept the patient on the drug for two years and failed to monitor his cardiac, circulatory or pulmonary functions despite warnings that this drug could affect those functions. The patient developed pulmonary hypertension and right ventricular heart failure and returned to see his physician. The covering physician failed to order even basic tests and failed to detect these life-threatening disorders. As a result, the patient’s condition worsened until taken to the hospital where he suffered complete pulmonary failure and nearly died.

The good news is that the man sought care from new physicians and has recovered, though he still has a weakened heart and some lung damage. The man came to me asking if he had a case of medical malpractice against his original doctors.

The Standard for Medical Malpractice in New York

Bringing a medical malpractice case in New York is quite difficult. Though I am a medical malpractice attorney, I believe it should be difficult to bring a malpractice case. Not every bad outcome is a result of medical malpractice. That said, if medical malpractice does occur, it is important to pursue the matter. Medical malpractice lawsuits bring justice to victims and help improve the safety of our heath care system.

To bring a medical malpractice lawsuit in New York, you must establish the following:

• That there was a substantial deviation from good and accepted medical practice;

and

• That the deviation caused significant harm.

New York medical malpractice law requires the attorney to file a certificate that he or she has consulted with a medical expert who verifies the case meets both requirements. It is not enough to show a deviation from good and accepted practice; one must prove that it caused the negative outcome. Similarly, a case may have a negative outcome, but it may not have resulted from a deviation from accepted practice. In New York, a medical malpractice case must meet both conditions to succeed.

Medical Malpractice in this Case

In this case, we were able to prove a substantial deviation from good and accepted medical care against both the treating physician and the covering doctor. The treating physician prescribed powerful medicine for too long without monitoring the patient’s condition. The fact that the overweight patient failed to lose weight only heightened the deviation from accepted care as the physician failed to perform even the most basic medical tests and failed to consider alternative weight-loss strategies. Likewise, the covering physician failed to perform basic tests that could have prevented the patient’s pulmonary failure.

We were able to prove that the doctors’ failure to monitor their patient directly led to the pulmonary failure. Had the doctors performed basic monitoring and tests, they could have helped the patient avoid the collapse and hospitalization. There was no better proof of their failure than the patient’s recovery under the care and treatment of new doctors.

At trial, the defense tried argued that the patient’s obesity and lifestyle caused his medical condition.  That argument was flawed – every patient goes to the doctor when he or she is sick.  The doctor has to properly treat every patient, not just the patients who are healthy and fit. Faced with the evidence, expert testimony and case findings that we assembled for the trial, the defense settled this medical malpractice case during trial. The defending physicians paid a combined settlement of $970,000.  

The case shows that medical malpractice can result from what a doctor fails to do as much as from what a doctor may do.  If you have legal questions regarding potential medical malpractice, you may want to consult an experienced and successful medical malpractice attorney. I handle medical malpractice cases in New York and if you have a medical malpractice question in New York, I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me.

I hope you found this information helpful. You can read about medical malpractice statute of limitations in New York here and more the process of bringing a medical malpractice case here. Please email me if you have comments, questions or would like assistance with a medical malpractice case. You can also visit my website or read more on my blog, New York Law Thoughts.  

Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.