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Medical Malpractice How To File A Claim | Medical Malpractice Defense Law Firm

Medical malpractice claims don’t settle easily out of court. Doctors are usually outraged at being sued. Some believe they can do no wrong. In any event, they don’t want to admit any wrongdoing, and to them, settling is just that, an admission that they did wrong. Therefore, more than with any other type of case, your lawyer must be prepared to try your case. Yet statistically, medical malpractice claims are among the most difficult claims to win at trial. Most of them are lost. Your best chance at settling, or if you can’t settle, winning at trial, is with an experienced medical malpractice trial attorney whose reputation might induce a favorable settlement or, that failing, whose trial skills and medical knowledge will tip the scales in your favor at trial. The medical malpractice team at Michaels & Smolak is skilled and experienced in such claims, so contact us for a free consultation now.


Healthcare providers at both private and public hospitals, in emergency rooms, and at all other healthcare facilities owe a duty of care to every patient. When the negligence of a doctor, a nurse, or any other healthcare provider causes an injury or a fatality, it is imperative for the victims and their families to seek sound legal advice and reliable answers to their questions and concerns. To prevail with a medical malpractice claim against a public or private New York hospital, the victim must show that a doctor or someone else employed by the hospital violated the professional and legal duty of care to the patient.

The third element that must be established to sue NHS hospitals and doctors in a clinical negligence / medical negligence case is damages, ie the amount of compensation the patient should receive. The amount of damages will depend on a variety of factors, the most important of which are the patient’s pain and suffering and the financial loss the patient has incurred and will incur.
Disclaimer: This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this blog or any of the e-mail links contained within the site do not create an attorney-client relationship between the author and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of any law firm or Psychology Today.
Medical malpractice suits are usually filed in a state trial court, unless the case involves federal funding, a military medical facility, or or a Veteran’s Administration facility: then it would be filed in a federal district court. A claim may also be filed in a federal court if the parties involved are from different states, or if there was an accused violation of a fundamental constitutional right.
Medical malpractice claims don’t only cover errors in diagnosis and treatment. Once you’ve established a doctor-patient relationship, the doctor owes you a duty of care and treatment with the degree of skill, care, and diligence as possessed by, or expected of, a reasonably competent physician under the same or similar circumstances. Part of that duty of care is to be forthcoming with your diagnosis, treatment options and prognosis, as reasonably competent physicians would not lie to their patients.
If you believe you have lost someone due to the actions or inactions of a doctor or other medical professional, you should contact an attorney immediately. If the attorney determines that the doctor's actions were so inappropriate that criminal charges may be appropriate, he or she can guide you through the process of contacting law enforcement and filing a police report. However, in most instances the attorney will simply assist you in making a monetary recovery to provide for those your loved one has left behind.
Prominent physicians Nathan Smith and R.E. Griffith of Yale and the University of Pennsylvania respectively held the belief that medical malpractice lawsuits were beneficial and necessary, serving as a tool of accountability in a profession that was poorly regulated. The American Medical Association (AMA) was founded in 1847 with the goal of promoting standardization of the profession, as well as elevating the standing of physicians in society. At the time, the vast majority of suits stemmed from orthopedic malpractice and deformations that resulted from botched amputations. As physicians sought to raise their own standards, higher patient expectations ensued. With the arrival of liability insurance for physicians, medical malpractice suits shot up in the States in the late 19th century.
Arizona lawmakers in 2012 passed a similar bill to prohibit wrongful birth lawsuits, though the legislation included exceptions in cases of an “intentional or grossly negligent act or omission.” Arizona State Sen. Nancy Barto (R-Phoenix) introduced the bill because she claimed wrongful birth lawsuits negatively affect children with disabilities. “True malpractice suits,” Barto said, would be allowed to proceed.
While both doctors in the above example should be able to diagnose the flu or pneumonia with relative ease, it would be more difficult to argue that the rural doctor was negligent for missing a diagnosis of some type of exotic disease usually only seen in people from foreign countries. On the other hand, the big city infectious disease expert would likely be negligent in not making the same diagnosis.

This is not to say that doctors can withhold details when they believe a patient might refuse treatment they deem beneficial, though. My father, Barry J. Nace, was actually involved in a seminal case that has helped to further shape the boundaries of informed consent in such situations. Canterbury v. Spence, 464 F2d 772 (D.C. 1972) involved a surgeon who withheld the possibility of paralysis from a spine surgery patient, fearing that anxiety on the part of the individual might lead to postponing the procedure. Ultimately, the patient suffered complications and ended up paralyzed, while the surgeon claimed he was operating within community disclosure standards—an accepted idea at the time that judged whether physicians within a particular “community” would customarily convey such information in similar circumstances.
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