Plaintiffs seeking to show medical negligence in court bear a greater burden of proof than those in simple negligence cases. It’s not enough to say that one suffered harm or a bad outcome as a result of undergoing care from a certain physician, nurse or medical staffer. One must prove the degree of care delivered fell below acceptable industry standards.
This has to be established even before the case goes to trial, with the help of expert witness testimony from a similarly-situated medical professional willing to attest defendant breached acceptable care standards. Additionally, when more than one defendant has been named, plaintiffs must be carefully and thoroughly lay out the case for exactly why each is responsible. For example, while a doctor may have been the one who acted with negligence, the hospital or clinic that employs her may be held vicariously liable simply by virtue of the fact that it is the employer. But that still has to be clearly spelled out.
In the recent case of Vaughan v. St. Vincent Hospital, a plaintiff was almost denied his day in court because the lower courts indicated there was no specific pleading of vicarious liability against the hospital relative to a certain doctor, and further indicated he hadn’t raised a genuine issue of material fact through his expert witness testimony. The New Mexico Supreme Court reversed and remanded upon appeal, finding the complaint allowed for “adequate” notification of defendants, and any deficiencies with regard to material facts should be resolved at trial.
New York City medical malpractice attorneys know whether it’s New Mexico or New York, allegations of physician negligence are serious and will not be taken lightly by the courts. Judges are not apt to strip a doctor with years of schooling and specialized experience of their reputation and career if it’s not warranted. Even when it is absolutely justified, patients may face an uphill battle proving it because of the resources to which physicians have access. This is why it’s so imperative for patients to seek an attorney with extensive experience in the field of medical malpractice law. This is not the kind of case you can trust to someone who is fresh out of law school or who has only mostly handled general injury cases.
In Vaughan, plaintiff came to a hospital emergency room in 2002 complaining of abdominal pain. He was examined by a department physician and surgeon, and a contract radiologist conducted an abdominal scan. Based on the results, the radiologist initially concluded patient had a “diverticular abscess,” which could possibly have been cancer. Although the radiologist discussed the diagnosis in person, it’s unclear whether they discussed the possibility of cancer.
The surgeon told the patient of the abscess diagnosis, and recommended he be admitted for observation. Patient refused and was discharged. He was advised to follow up for partial removal of his colon, but he never did.
Radiologist later dictated his report to a hospital transcriber, indicated the abscess as the “first consideration” and “neoplasm” (cancer) as the “second consideration.” The results were communicated with the ER doctor and surgeon, though there is no indication they received copies of that report, as they would have expected. The surgeon said had she received any report indicating a possible cancer diagnosis, she would have tried to contact the patient immediately.
Little more than one year later, patient was diagnosed with Stage III colon cancer. In 2006, he filed a lawsuit alleging medical negligence, asserting he did not receive a proper, timely diagnosis because the radiologist failed to forward the report to the surgeon.
The hospital later filed a motion for summary judgment, presenting expert witness testimony indicating it complied with applicable care standards and noting plaintiff had not named an expert witness – neither to indicate the standard of care for communication between the radiologist and other doctors or to show the delay in diagnosis caused him injury. The hospital held plaintiff was required to assert vicarious liability specifically if he intended to recover damages under that theory.
Plaintiff responded with affidavits from his treating oncologist, attesting that a delay in diagnosis had severely impacted his chance for survival, and another from a different radiologist, attesting to the standard of care for communication between the radiologist and other doctors, and asserting it had been breached in his case.
District court granted summary judgment to defendants, but that finding was later reversed by the state supreme court, which found his pleading “sufficient.”
There is often a fine line in these cases between what is “sufficient” and what is not going to be enough to proceed. It’s not a line you want to walk without an attorney who knows what they are doing.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Additional Resources:
Vaughan v. St. Vincent Hospital, Sept. 18, 2014, New Mexico Supreme Court
More Bog Entries:
Devadas v. Niksarli – $4M New York Eye Surgery Malpractice Verdict Upheld, Sept. 25, 2014, New York City Medical Malpractice Attorney Blog
