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What Constitutes Medical Malpractice?

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What Constitutes Medical Malpractice?

Medical complications can arise even when a doctor provides the highest possible quality of care. As such, just because a treatment wasn’t successful or the patient suffered unexpected side effects doesn’t necessarily mean that medical malpractice has occurred.

To prevail in a medical malpractice claim, it must be shown that the defendant breached the duty of care owed to the patient. In other words, the provider or facility must have deviated from the most widely accepted standards of care in some way. Additionally, the claimant must prove that damages were incurred as a direct result of the breach of the duty of care.

These four “Ds”—duty, deviation, direct cause, and damages—are the basis of every successful medical malpractice claim. Read on to learn how attorneys might prove these four elements:

  1. Duty

If your friend is a doctor and you ask him about a rash in passing, you wouldn’t necessarily have grounds for a malpractice claim if his or her suggestions happen to be incorrect. Such a claim can only be successful against a provider who owed you a duty of care.

This duty is usually established upon seeing the provider in a clinical setting. Your medical records should be sufficient to prove the duty of care existed.

  1. Deviation

If a different provider with the same training and experience would have taken the same actions as your actual provider, you wouldn’t have grounds for a malpractice claim. You must be able to prove that your provider deviated from the most reasonable and widely accepted standards of care given the circumstances. Your attorney might use the following evidence to demonstrate how your provider deviated from those standards:

  • Medical records;
  • Eyewitness testimony; and
  • Testimony from medical experts.
  1. Direct Cause

The breach of the duty of care must have been directly responsible for the complications that you or your loved one suffered. If your doctor happened to make a mistake and you happened to suffer complications but the two were unrelated, you might not be entitled to damages.

  1. Damages

Your lawyer must be able to prove that you incurred damages as a result of the substandard care you received. In the state of New York, potentially recoverable damages include:

  • Medical bills;
  • Lost income and benefits;
  • Loss of future earning capacity;
  • Home care;
  • Domestic help;
  • Pain and suffering;
  • Mental anguish;
  • Scarring and disfigurement; and
  • Loss of enjoyment in life.

When it comes to proving the above damages, the followings kinds of evidence may help:

  • Hospital bills;
  • Pharmacy receipts;
  • Income statements and paystubs;
  • Statistics regarding average earnings for those in your industry who hold similar positions;
  • Invoices for home care and/or domestic help;
  • Photographs of any visible wounds; and
  • Daily journal entries detailing your recovery.

Discuss Your Case with a Medical Malpractice Attorney in New York City

If you received substandard care in a medical facility, you may be entitled to compensation for all resulting damages. To determine if you have grounds for a claim, contact The Law Office of Richard M. Kenny.

Our attorneys have more than a century of combined experience. Call 212-421-0300 or fill out our Contact Form to schedule a free case evaluation with a medical malpractice lawyer in New York City.


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Whether you need a Bronx car accident lawyer, birth injury lawyer, construction accident lawyer or legal representation for any type of accident, the NYC personal injury lawyers at The Law Office of Richard M. Kenny can help. Located in New York City, we've helped hundreds of individuals throughout the Bronx, Brooklyn (Kings County), Manhattan, Queens and Nassau County recover the compensation they need to receive proper medical care, treatment and quality of life after serious injury.


If you've been injured due to the negligence or wrong-doing of another, we can provide you and your loved ones with the legal support needed to ensure proper medical attention, long-term treatment and fair, reasonable financial compensation is received for your injury. The initial consultation is always free. For immediate assistance, call (212) 421-0300.


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