Doctors and Hospital Medical Malpractice


When illness or injury forces you to see a physician or go to the hospital, you can generally be assured that a medical professional's years of experience and training will result in excellent treatment. But in truth, medical care providers are only human, and errors are always possible. Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.

Negligence by a medical professional can include an error in diagnosis, treatment, or illness management. If such negligence results in injury to a patient, a legal case for medical malpractice can arise against:

  • The doctor, if his or her actions deviated from generally accepted standards of practice;
  • The hospital for improper care or inadequate training, such as problems with medications or sanitation;
  • Local, state or federal agencies that operate hospital facilities.

Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as a result of negligence. However, malpractice suits are often complex and costly to win. Therefore, if you believe you have a medical malpractice claim, it is important to consult with Attorney Kopko who will discuss your case with you, and help you determine your best options.

Deadline to Begin Medical Malpractice Actions

In New York State a medical malpractice action must, in most instances, be commenced within two and one-half years (2) from the date the negligence occurred. In Pennsylvania a medical malpractice action must be commenced within two years. It is important, therefore, to contact Attorney Kopko as soon as you believe you may have a case so that there is ample time available to review, prepare and file the legal action.

Legislation Affecting Malpractice Actions

Before an injured person can even file a malpractice action against a health care professional, a "certificate of merit" must be obtained. In order to obtain a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit. The reviewing expert charges fees according to the nature of the claim and the amount of time necessary to review the medical records. This cost for the expert review is usually between $1k and $2k.

"Respondeat Superior" and Independent Contractors

Medical malpractice can be committed by several types of health care professionals and, in a case where a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of "respondeat superior." Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligence occurred. This doctrine is very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

In some situations, commonly involving attending physicians working in hospitals, health care providers are considered independent contractors rather than employees, which makes the doctrine of "respondeat superior" inapplicable. What this means is, if a doctor or other health care professional an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent physician.

Getting Legal Help in a Medical Malpractice Case

In general, there are no guarantees of medical results. An unanticipated or unsuccessful result from medical treatment or surgery does not, in itself, mean that medical malpractice has been committed. Nonetheless, if you believe you may have been the victim of medical malpractice, you should meet with Attorney Kopko as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation, especially in light of time limits for filing a medical malpractice lawsuit.

Proving Fault in Medical Malpractice Cases

Legal liability for injuries caused by medical malpractice can be established under a number of legal theories:


Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:

  • The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship);
  • The applicable standard of care, and the health care professional's deviation from that standard, which is deemed a breach of the duty owed to the patient;
  • A causal relationship between the health care professional's deviation from the standard of care and the patient's injury;
  • Injury to the patient.

To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, a plaintiff must present the testimony of another medical expert, qualified in the same area of medicine as the defendant, indicating what standard, or level of care, is commonly met by those recognized in the profession as being competent and qualified to practice. The plaintiff will have to present expert testimony not only as to the applicable standard of care, but establishing that the defendant failed to meet this standard.

Negligent Prescription of Medications or Medical Devices

A medical professional may be held liable for the negligent prescription of a medication or medical device if he or she ignored the manufacturer's instructions, or prescribed an incorrect medication or dosage, which resulted in injury to the patient. In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn of potential side effects or dangers of the drug. In most cases, the prescribing physician is considered a "learned intermediary," which means that because of his or her superior medical knowledge, and the fact that he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.

Informed Consent

In many situations, the failure to obtain a patient's "informed consent" relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.

Breach of Contract or Warranty

Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure, and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Problems of Proof: The "Res Ipsa" Doctrine

Establishing wrongdoing on the part of a health care provider is often difficult. It requires the hiring of experts, in the same field as the health care professional being charged with misconduct, who must testify as to what the defendant should have done under applicable professional standards. Proving malpractice is also difficult because the defendants are often the ones who write the medical reports that often form the basis of the suit. Since they are often the only ones who are present and know what really occurred when the negligence happened, and they choose how to describe the event, records are often not descriptive of what truly happened. In addition, some health care providers may frame their reports so as to protect someone guilty of misconduct.

Fortunately, the law recognizes that plaintiffs face certain difficulties in proving medical negligence. If a patient injured as the result of a medical procedure does not know exactly what caused his or her injury, but it is the type of injury that would not have occurred without negligence on the part of his or her health care provider(s), he or she may invoke a legal doctrine known as "res ipsa loquitur." Translated, this Latin phrase means "the thing speaks for itself," and implies that the plaintiff need only show that a particular result occurred and would not have occurred but for someone's negligence.

Once this doctrine is successfully invoked, the burden is not on the plaintiff to show how the defendant was negligent, but on the defendant to show that he or she was not negligent. To invoke this doctrine successfully, a plaintiff has to show that:

  1. Evidence of the actual cause of the injury is not obtainable;
  2. The injury is not the kind that ordinarily occurs in the absence of negligence by someone;
  3. The plaintiff was not responsible for his or her own injury;
  4. The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and
  5. The injury could not have been caused by any instrumentality other than that over which the defendant had control.

Checklist: Information and Documents to Collect for Attorney Kopko

Before you meet with Attorney Kopko for the first time after you've been injured, collect any documents you have relating to your accident and injury and place them in a folder or large envelope. Here's a list of some of the documents and other pertinent information to take with you to Attorney Kopko, if applicable to your case.

Download printer-friendly checklist (PDF)

Written Personal History

It is important to be able to recall as much detail of your medical history when reviewing your potential medical malpractice case with Attorney Kopko. It is strongly recommended, therefore, that you write a detailed personal narrative of the facts and circumstances of your medical care that gave rise to your belief you may have a case. The narrative should be reasonably detailed, but it is extremely important to include as many accurate dates as you can. A well written narrative will be very helpful to Attorney Kopko in assessing your case, learning your personal history, and determining which medical records need to be obtained. It is also recommended that you write your personal narrative as soon as you first believe you may have a case. This is simply because the closer in time you are to the incidents the better you will remember them.

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