Patients have the right to expect accurate diagnosis and appropriate treatment from the medical service providers. When qualified medical practitioners and registered service providers fail to honor this reasonable expectation, injured parties look for legal recourse and damages. A delay in diagnosis or an inappropriate treatment may cause devastating consequences affecting the quality of life of the patient.

Medical malpractice has varied ramifications and can take the form of:

• a delay in diagnosis;
• negligence of doctors;
• surgical or anesthesia related mishap during an operative procedure;
• failure to diagnose a medical condition;
• improper consent before a medical procedure;
• improper treatment of an illness or disease;
• birth injury, including cerebral palsy and brain damage;
• prescription drug error or an error arising out of a medical device or implant and many, many more.

Equity demands that someone harmed by the actions of a physician or other medical professional deserves to be compensated by the injuring party. As such, healthcare providers, including, doctors, nurses, hospitals, and pharmaceutical companies need to be held accountable for the pain and suffering that they create after performing medical malpractice or medical negligence.

As in a general negligence claim, a plaintiff in a medical malpractice action must prove the elements of duty, breach of duty, causation and damages. Generally, the four pre-requisites for a valid claim of medical malpractice are that the existence of a provider-patient relationship, negligent care rendered to the patient and harm ensued and finally the damage or harm was a direct consequence of the negligent care. New York does not limit the amount of recoverable damages in medical malpractice actions. Also, New York law does not provide a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.


The healing profession is ailing with surgical mishaps and medical treatment errors. Studies blame America's health system for causing between 44,000 and 98,000 error-related deaths annually. New York is one of 20 medical malpractice "crisis states" for physicians designated by the American Medical Association. The associated rise in medical malpractice litigation underscores this point.

As far as negligence is concerned, New York is a pure comparative negligence state. Under New York law N.Y. C.P.L.R. § 1411 (McKinney 1997), a claimant's negligence, regardless of how great, will not bar recovery. Though, the damages will be reduced in proportion to the injured party's negligence. In New York contributory negligence cases, the liability margin, however high, is not a mitigating factor. Figures vastly underestimate the magnitude of the problem since in-patients' statistics show only the tip of the iceberg. Yet eight times as many patients are injured by medical malpractice as ever file a claim; 16 times as many suffer injuries as receive any compensation. Harvard Medical Practice Study. In the state of New York, the victims have of to file a medical malpractice claim with in two and a half years from the act or omission complained of or from the end of a continuous treatment during which the act or omission took place.


An error margin is fixed for medical malpractice as medical profession is a highly risk prone area and treatment often involves a calculated risk and possible disagreement among experts as to whether the risk was warranted or not. If a physician chooses for a patient, a course of treatment, within a range of medically accepted choices, after a proper examination and evaluation, the doctrine of professional medical judgment will insulate him from liability. To impose liability, a plaintiff must show that the doctor's decision was something falls below the certified medical determination. Standards of care develop through the interaction of medical leaders, professional journals and meetings, and peer networks and are proven by expert medical testimony at trial and as such the courts, while assessing whether the standard of care has been met, normally rely on medical consensus regarding the safety and efficacy of a given therapy.


State regulations require medical records to be maintained and the failure to comply may result in disciplinary measures such as suspension or revocation of the license to practice medicine. Technology has leapfrogged and computer technology has changed the way records are kept and transmitted. Information may be furnished to third-parties only when it is necessary and is strictly limited to the purpose involved. A physician who agrees to treat a patient also agrees to keep in confidence all information divulged by the patient concerning the patient's mental and physical condition, as well as information learned by the physician in the course of treatment. The duty to maintain confidence is not absolute. The doctor can very well reveal the information with the patient's consent. (N.Y. Civ. Prac L & R §4504 [McKinney's, 1999). The statutes requiring mandatory reportings as pertaining to AIDS/HIV-related information is yet another example of this exemption. (New York Public Health Law §2782).


Hospitals, their employees, pharmaceutical companies etc can be held liable for Medical Malpractice. Hospitals can be held directly and vicariously liable for their own negligence, and for the negligence of their employees. Under the concept of vicarious liability a party is not liable for his own negligence, but for the negligence of another person.

The staff in a hospital will consist of physicians and other attending medical staff. It is the duty of the hospital to make reasonable inquiries into the applicant's credentials before employing him. The failure to do so will make the hospital liable if such an employee's negligent care injures a patient. A hospital might be held liable for its own negligence where, for example, it fails to investigate the credentials of an attending physician before granting him privileges at the hospital, or where it allows a physician whom it knew, or should have known, was incompetent, to treat patients at the hospital.

Hospitals should ensure that there are sufficient numbers of medical staff at all times to maintain the quality of patient care. Hospital employees may sometimes fail to follow the orders of patients attending physicians which would result in injury to the patient. Sometimes the treatment prescribed by the attending physician may be completely wrong and the hospital employee who has knowledge of this may fail to make reasonable enquiry. Under all such circumstances the hospital may be held liable.

Hospitals are generally required to treat seriously injured or ill people on an emergency basis and federal and state statutes prohibit hospitals from refusing to treat or admit people based on their race, color, religion or national origin, or on their inability to pay for treatment. Any violation will result in liability.


Pharmaceutical companies will be held liable if the manufacturer fails to warn the physician of the dangers and side effects of the drug. The primary duty of a manufacturer is to physicians and not to the patient. He cannot be held liable for the patient's injuries if he has disclosed all the information about all the risks associated with a particular drug to the physician. A manufacturer must research the drug's possible side effects and risks before putting it on the market. Failure to do so may render it unreasonably dangerous, and the manufacturer may be held liable.

The physician being a learned liaison having expertise and experience has the primary duty of advising the patient of the risks and side effects of a medication or medical device he prescribes.


When a person is involved in an accident or injury he has a legal obligation to minimize the effects and losses resulting from those injuries and this obligation includes undergoing appropriate medical care, and seeking other employment if the injured person's usual line of work is no longer possible. This is called mitigation of damages. The injured will be denied a chance to recover any part of his damages if he fails do so.

Damages for Medical Malpractice recovery for accidents and injuries can be claimed for disfigurement, or deformities resulting from an accident. The injured parties can also obtain damages for any mental anguish resulting from awareness of the disfigurement. If the party requires continued medical treatment as a result of the accident or injury, future medical expenses can be claimed from the erring parties. Medical surveillance cost, i.e. the cost of monitoring plaintiff's medical condition after the plaintiff was exposed to a hazardous substance, for instance, so that any illness or injury might be detected early is also covered here.

In addition to this, medical expenses also include general damages in the form of compensation for physical or mental pain resulting from an accident. The cost of hiring somebody to do the household chores while the plaintiff is recovering, which the plaintiff could otherwise do with out assistance is also covered under medical expenses. The damages for loss of consortium, loss of enjoyment of life, social life and companionship also fall in to the bargain.

More importantly, compensation can be claimed for lost wages as well as loss of earning capacity. However, this is dependent on several factors such as the plaintiff's age, health, life expectancy, occupation, talents, skill, experience, and training. Past earnings are also a determinant factor.

Damages can be claimed for permanent disability. These damages are best proved by medical testimony. The purview is much wider as some courts have held that permanent disability damages can include not only disabilities that are objectively determined, but also disabilities that the plaintiff subjectively perceives. Damages are calculated on the present cash value i.e. the current value of projected future earnings had the injury not been caused is the preferred bench mark. In addition to these, the injured person is entitled to Special damages that cover all monetary losses, including medical expenses.