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A patient presented to the emergency room complaining of hip pain. She was met by a nurse who asked her a few rudimentary questions and then ordered radiographs to confirm a hip fracture. The radiographs were presented to a doctor who found no indication of a hip fracture. The attending nurse concurred, and the patient was discharged with pain medication.
Two hours later, the woman had her husband drive her to another hospital. The hospital performs a CT scan and diagnoses a hip fracture. The woman is admitted, treated, and undergoes physical therapy. She is presumably okay now.
Is this medical malpractice?
What is Medical Malpractice?
Medical malpractice is a combination of professional negligence and personal injury. Personal injury lawsuits operate on a simple theory of negligence, while medical malpractice operates on a theory of professional negligence. Professional negligence is harder to prove than simple negligence. It requires expert opinions, doctors willing to testify, review panels, and more. To prove simple negligence, you must only establish that the negligent party violated an ordinary duty of care. To prove medical negligence, you must establish that the doctor violated the standard of care for the profession. If the doctor violated the prevailing standard of care for their medical specialty, you must then prove that injuries resulted from that failure.
That is what we do not have in the example above: Evidence of substantial injury resulting from the alleged malpractice. In fact, if no injuries occur, then you have no established that medical malpractice occurred. So, your doctor can diagnose you with demon possession, and so long as you come out okay, there is not much you can do about it.
Breach of Standard of Care Plus Injury Equals Medical Malpractice
In this case, you have a breach of the standard of care that could have resulted in serious injury, a worse outcome, or even the loss of the leg. However, the patient was savvy enough to reject the bad diagnosis and seek help elsewhere. The doctors at the other hospital employed the correct standard of care by analyzing the hip with a CT. The doctors at the first hospital failed to spot the fracture using X-rays. Had the woman gone home and broken her hip, she would have been able to sue the hospital over that injury. But she didn’t.
Alternatively, you may end up severely injured by a medical doctor. However, if that doctor employed the prevailing standard of care for the profession, the matter is not actionable under medical malpractice law. You must have both elements to prove medical malpractice. In other words, there must both be a breach in the standard of care and an injury linked to that breach.
Talk to a New York Medical Malpractice Lawyer Today
The Glassman Law Group represents the interests of injured patients in medical malpractice lawsuits. Call today to schedule a free consultation, and we can begin analyzing your options immediately.
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