What is Medical Malpractice?
Medical malpractice is when a doctor makes a medical mistake that causes injury to the patient. A medical mistake is when a doctor fails to use reasonable care under the circumstances and does something that another reasonably prudent doctor would not do under the same circumstances. A medical mistake is a departure from accepted practices, also referred to as standards of care that doctors must follow.
Generally, before starting any medical malpractice claim in New York, another physician must review the medical records and find that the doctor made a medical mistake and that the patient was injured as a result. This is referred to as an expert review.
Unavoidable vs Avoidable Complications in Surgical Procedures
A medical mistake may occur during a surgical procedure. As we all know, there are risks and complications associated with every surgical procedure. There are both unavoidable complications of a surgical procedure and avoidable complications of a surgical procedure.
An unavoidable risk of a surgical procedure occurs when a surgeon uses reasonable care and proper surgical technique during the surgery but, unfortunately, the complication occurs anyway. These unavoidable complications of a surgical procedure are referred to as “accepted risks of the surgical procedure.” An unavoidable complication of a surgical procedure is not considered medical malpractice.
However, there are also avoidable complications of surgical procedures. A preventable medical mistake during a surgical procedure is considered an avoidable complication of the surgical procedure. A preventable surgical complication is something that can be avoided if proper surgical technique or safety rules are followed. A preventable surgical mistake that results in harm to the patient would be considered medical malpractice.
An expert review may be necessary to know if a complication after a surgical procedure is a result of a preventable mistake made by the surgeon during the procedure or was an unavoidable complication of the procedure.
A doctor must explain the risks, benefits, and alternatives of the procedure to the patient before the surgical procedure and obtain the patient’s consent for the procedure. This is referred to as “informed consent” for the surgical procedure.
A patient may have a claim for “lack of informed consent” if a doctor fails to properly explain to the patient the risks, benefits and alternatives of the procedure.
To have a claim for lack of informed consent, you must show:
- The doctor did not provide the patient with appropriate information regarding the risks, benefits and alternatives of the procedure before obtaining the patient’s consent to the operation;
- That a reasonably prudent person would not have consented to the procedure if the appropriate information regarding the risks, benefits and alternatives of the procedure were told to the patient; and
- The patient was injured as a result of the procedure.
When to Contact an Attorney
Whenever a patient feels he or she has suffered harm from a surgical procedure, the first person to turn to for an explanation should be the doctor. If a satisfactory answer is not given or, rarely, if the doctor admits to making a mistake, one might then consider consulting an attorney knowledgeable in the area of medical malpractice claims.
With our highly experienced medical malpractice attorneys and talented nurse consulting staff, Faraci Lange has the talent, resources and experience to succeed against the insurance companies representing doctors and hospitals. That is why more people in Rochester, Buffalo, Monroe and surrounding counties choose Faraci Lange to represent them in medical malpractice actions than any other firm.
Jennifer L. Fay has been successfully representing plaintiffs in Medical Malpractice claims since she joined Faraci Lange’s Buffalo office in 2013.
To contact Faraci Lange about a potential medical malpractice case, call or text us at (888) 325-5150 or click here to submit an online contact form for a free legal consultation.