commack medical malpractice attorney

What is medical malpractice?

According to the Legal Information Institute at Cornell Law School, malpractice is committed “when a professional fails to properly execute their duty to a client.” 

Therefore, medical malpractice occurs when a doctor, nurse, or other health care professional fails to provide appropriate treatment, fails to take appropriate action, or gives substandard treatment, all of which can cause harm, injury, or death to a patient.

This type of malpractice typically involves a medical error – failure to diagnose, substandard aftercare, and medication errors are all common examples.

Doctors are sued all the time, but not every case is viable. This is because doctors and other medical professionals are not liable for all the harm that a patient may experience. For example, a disgruntled patient won’t have a successful malpractice case just because they’re dissatisfied with the result of their surgery.

To be considered malpractice, the doctor must have deviated from the quality of care that is expected in similar situations – what is known as the “standard of care.”

Standard of care refers to the level and type of care that a “reasonably competent and skilled” healthcare professional with comparable education and similar background would have provided under the same circumstances. The first question to answer in a potential medical malpractice case is: Would a similarly-trained and educated professional have made the same decision? If the answer is no and you were harmed as a result of that treatment, you may have a viable case.

The only way to know for sure is by contacting a Commack medical malpractice lawyer at Carner & DeVita. Call (631) 380-4417 for more information.

Common Types of Medical Malpractice Claims

The following are all common types of claims brought about from a doctor’s or medical professional’s negligence. Carner & DeVita’s Commack medical malpractice lawyers have handled all of these types of claims, assisting clients with their deep knowledge of both the medical and legal fields.

If you or your loved one was injured by a medical error, call us today. In the meantime, keep reading to learn more about medical negligence.


Misdiagnosis occurs when a doctor tells their patient they have a condition which they do not have. Misdiagnosis refers to several different errors, including wrong diagnosis, missed diagnosis, delayed diagnosis, or failure to recognize complications that cause a person’s condition to worsen. Here are some examples of each:

  • Wrong diagnosis: A patient presents with chest pain. The doctor diagnoses them with indigestion, but they are having a heart attack.
  • Missed diagnosis: A doctor tells their female patient that the lump in her breast is benign. The patient learns later that it is actually malignant.
  • Delayed diagnosis: Even though their patient presents with symptoms of bone cancer, a doctor fails to order proper tests. The patient is finally diagnosed months later, but by then the cancer has spread.
  • Failure to recognize complications: A pregnant woman presents to the physician with symptoms of preeclampsia. The doctor diagnoses her correctly but fails to examine the fetus.

Prescription Drug Errors

You’ve almost certainly heard about the opioid epidemic plaguing America. These and other prescriptions can be very helpful, but only if they’re used and prescribed correctly.

Unfortunately, opioids aren’t the only prescriptions causing harm to thousands of people each year. Due to medical error, countless patients receive the wrong type or dose of medication. Sometimes, doctors fail to review a patient’s history and prescribe a medication to which the individual is allergic. 

Here are some common examples of prescription drug errors:

Wrong medication: A doctor may prescribe the wrong drug for a certain condition, or a pharmacist may misread the prescription. Rarely, the wrong medication can be prescribed if the pharmaceutical company has misleading advertising or fails to display warnings.

Incorrect dosage: This is a terrifying but true story published by the Harvard medical community.

An 86-year-old woman was treated in an emergency room for congestive heart failure. Several dosage mistakes occurred while she was being treated: first, staff failed to report her current medication, putting down 0.625mg of Digoxin when she was actually taking 0.0625mg.

The admitting resident correctly converted the incorrect digoxin dose from mg to mcg, but it was too late – the medication order was for 625 mcg when it should have been 62. 

The pharmacist reviewed the patient’s orders, entered the dose into the computer system, and was given a warning that the amount exceeded the daily dose, but the pharmacist overrode the system alert and didn’t contact the ordering physician to confirm.

This series of mistakes led to the elderly woman receiving 10 times the intended dose of medication. She complained of nausea and was treated with additional medication. By this point, her heart rate was in the 30s and her blood work showed an elevated potassium level. Testing showed a digoxin level of 27.5 (the normal range is 0.8 to 2ng/ml). Six weeks later, the patient died from kidney failure and cardiomyopathy.

Prescribing medication to which the patient is allergic: This error often occurs due to outright carelessness on the part of the attending doctor or nurse. For example, a patient is given penicillin even though their medical notes clearly state that they are allergic. 

A busy emergency room or long lineup of patients is no excuse. Allergic reactions can be deadly and should be prevented at all costs. If you were prescribed a medication that medical professionals knew you were allergic to, call a Commack medical malpractice lawyer right away. 

Prescribing a medication that causes an adverse reaction: This error often occurs when a doctor or healthcare professional fails to create or review the patient’s history. Patient history should include all of the medications that a patient is or was recently taking. 

Some prescriptions have a longer half-life than others, so an added prescription can cause heightened levels of certain chemicals in the body that could cause dangerous side effects.

Child Birth Errors

Birth-related medical malpractice occurs when a doctor or hospital acts negligently and causes injury to the mother or infant, causes a wrongful birth (when the parents would have avoided or terminated a pregnancy had they known of birth defects), or a wrongful pregnancy (when the parents’ measure to prevent or end a pregnancy fails).

Although modern medicine has greatly reduced the number of birth injuries compared to centuries or even 50 years ago, doctors still make mistakes. These errors often result from the doctor’s failure to control excessive blood loss or their failure to monitor the infant’s oxygen intake pre and post-delivery. 

Some of the injuries that can befall an infant due to medical error include:

Cerebral palsy: Cerebral palsy (CP) is a congenital disorder affecting a child’s movement, posture, and muscle tone as well as related conditions of intellectual disability, seizures, and vision problems. Infants must be monitored closely throughout the birthing process to prevent brain damage that could lead to cerebral palsy. 

When doctors or other medical staff fail to monitor the infant’s stress tests and bio-physical files, the child can suffer irreparable damage. Failing to order a C-section on time, failing to recognize unusual changes in the infant’s heart rate, and failing to diagnose and treat maternal infections are all possible causes of CP in newborns.

Erb’s palsy: Erb’s palsy occurs when nerves in the brachial plexus (network of nerves in the shoulder that carry signals from the spinal cord to the arms and hands) are damaged, leading to weakness or immobility of the arm, hand, and shoulder. Although most cases of Erb’s palsy can be treated with expensive surgery, physical therapy, and other procedures, severe damage can cause permanent disability or weakness.

Nerves in the brachial plexus can be damaged during birth if the infant’s shoulders are stretched unnaturally or if their head and neck are pulled or pushed sideways, allowing the head to emerge but leaving the shoulders stuck.

Of course, not all birth injuries only affect the infant. Postpartum hemorrhage (PPH) is a very serious threat to mothers and occurs when the mother loses more than 500cc of blood following a vaginal delivery or 1000cc of blood following a C-section. Serious complications or even death can occur if the doctor doesn’t monitor attentively the mother’s condition.

If you or your baby was injured due to a medical error, call the Commack medical malpractice lawyers at Carner & DeVita today.

Anesthesia Errors

Anesthesia is one of the greatest assets to the medical community, preventing patients from feeling pain during invasive procedures that would otherwise be unbearable. Anesthesia is essential, but it comes with high risks.

These medications will almost always be administered by an anesthesiologist and can come in several different forms, including general (makes the patient completely unconscious) regional (blocks pain in a large area of the body but does not cause unconsciousness), and local (blocks pain in a small area of the body and does not cause unconsciousness).

There are always risks with anesthesia, and any patient undergoing a procedure anesthetized must sign forms acknowledging the potential risks. However, patients sign those forms with the understanding that the doctor will administer them correctly and responsibly. When the doctor does not, their negligence could be considered malpractice.

These are some of the most common medical errors regarding anesthesia:

Pre-operation errors: Anesthesiologists must take thorough patient history before administering any medication. If they fail to do so, they may administer drugs that the patient is allergic to or will have an adverse reaction with. 

There are also strict measures that patients must undergo before many surgical procedures, such as fasting. If the anesthesiologist or doctor fails to give the patient proper pre-op instructions, their risk of injury or death increases exponentially.

Intubation and extubation errors: When patients are unconscious during general anesthesia, the anesthesiologist must insert a breathing tube into the patient’s throat. Improper intubation can cause brain damage due to lack of oxygen, nerve damage in the neck or esophagus, stroke, or paralysis of the vocal cords, among other things. 

Patients may also be injured from improper extubation, or the removal of the breathing tube.

Dosage errors: It’s terrifying to think that an anesthesiologist would administer too much medication, causing coma or organ damage in their patient, or too little, causing the patient to wake up during surgery. Unfortunately, these errors are made quite frequently, leading to serious injury or death.

Surgical Errors

A “surgical error” is any preventable mistake that occurred during surgery. Surgeons are highly trained and educated medical professionals, so you might think errors would be few and far between. 

Unfortunately, even these professionals make careless or negligent errors that cause their patients harm or injury. By definition, a surgical error goes beyond what may have been printed in the “informed consent” document – surgical errors are by nature, unexpected.

These are some common types of surgical errors:

Injuring a nerve: Surgeons can injure nerves by cutting, burning, or clamping a nerve, subsequently causing damage and interfering with the nerve signals between that body part and the brain. 

Operating on the wrong body part or side of the body: This is a terrifying example of medical malpractice where a surgical procedure is performed on the wrong body part. An example of wrong-part surgery is an operation on the small intestine that was meant for the large intestine. An example of wrong-side surgery is when a surgeon operates on a person’s left ovary instead of the intended right ovary.

Operating on the wrong patient: Yes, this does happen. Wrong-patient surgery can occur if the surgeon mixes up patient files on their way to the operating room. A simple way that doctors can prevent this error is by asking the patient to state their name, not just getting them to answer “yes” or “no” when they say the name. Doctors may forget that the patient is under medication and may not be aware of what they’re saying.

Leaving a surgical instrument inside the patient: Sponges and clamps are too often left inside the body of the patient. It’s simple for doctors or nurses to count the number of instruments before and after the surgery to ensure nothing was left behind, but unfortunately, some medical professionals don’t take that step.

How is medical malpractice proven?

As mentioned above, it’s not enough to be dissatisfied with the result of your surgery or medical treatment to bring a case against the doctor or hospital. You and your Commack medical malpractice lawyer must prove the following four elements to have a valid case. If one element is missing, it won’t go forward.

If you have questions regarding the lawfulness of your case, reach out to Carner & DeVita today. Call us at (631) 380-4417 to schedule a free, no-obligation consultation.

A provider-patient relationship existed.

You can’t just sue a doctor you overheard on the street or at a party giving medical advice. To have a valid medical malpractice claim, you and your attorney must prove that you entered into a provider-patient relationship where you sought the doctor’s help and the doctor consented to treat you. 

This is usually the easiest part to prove – patient intake forms and medical records showing the course of treatment are valuable pieces of evidence.

The doctor breached the standard of care.

Standard of care refers to the level and type of care that a “reasonably competent and skilled” health care professional with comparable education and similar background would have provided under the same circumstances.

To prove that the doctor who caused your injury breached the standard of care, it’s helpful for a medical expert (another doctor) to step in and define what the standard of care would have been in the given situation.

The doctor’s negligence directly caused your injury or harm.

The third step in proving medical malpractice is to show that your injuries arose from the act of negligence itself, not a preexisting condition. 

If you cannot prove that the doctor’s or medical professional’s actions caused your injury, it will be extremely difficult, and more likely impossible, to prove malpractice.

The injury or death led to quantifiable damages.

Finally, you must prove that the doctor’s negligence and your subsequent injury led to you suffering damages. Lost income, pain and suffering, and permanent disability are all common types of damages retrievable in a medical malpractice case.

What medical malpractice damages can be awarded?

You may sue for damages if you have a legitimate and arguable medical malpractice case. Typically, victims of medical malpractice can recover general and special damages.

General Damages

General (also known as non-economic) damages are without an exact calculation. Although they are real and can cause legitimate distress in victims, they usually take more time and effort to assign a monetary value.

Pain and suffering and loss of consortium (loss of association and fellowship between married people) are common types of general damages awarded in medical malpractice cases.

Special (Economic) Damages

Economic damages are more easily quantifiable than general damages. They can include the cost of medical treatment to remedy the damage done, lost income, lost earning capacity (ability to make a living), and other financial losses suffered by and attributable to the medical error.

Punitive Damages

Punitive damages are usually only awarded where a doctor or other medical professional inflicted intentional harm on their patient, so they’re rarely awarded in medical malpractice cases. Of course, there are exceptions to this rule. 

For example, punitive damages could be awarded in the case of a surgeon who knew they needed to fix multiple problems, but only fixed one so the patient would come back for another surgery, meaning the surgeon would make more money.

How long do I have to file a lawsuit after a medical malpractice injury?

In New York, ordinarily, victims of medical malpractice must file a lawsuit within two and a half years from the date of the malpractice or from the end of the continuous treatment you received from the party you wish to sue. This deadline is known as a “statute of limitations,” and it ensures that cases brought to trial are based on relevant, timely evidence that has not expired with age.

If you have questions concerning your case or want to know whether you have time to file, contact a Commack medical malpractice lawyer at Carner & DeVita. We’re here to assist you in all matters pertaining to your case, and we’ll fight to get you the compensation you deserve. Call (631) 380-4417 today to schedule your consultation.

Contact a Commack Medical Malpractice Lawyer Today

As a patient, you put your trust in the doctor or other medical professional who has taken an oath and agreed to provide you with treatment. Doctors take an oath to help their patients and not to bring them harm, but unfortunately, many healthcare professionals act negligently and cause harm or injury to their patients.

For over 60 years, Carner & DeVita has successfully represented victims of medical malpractice, awarding them with the money they need to remedy the injury done to them and move forward with their lives. We are compassionate, understanding, and hard-working professionals who have close relationships with experts who can help win your case. 

We’ve handled all possible kinds of medical malpractice cases, and we’ll handle yours to get you the compensation you need. If you or your loved one were injured by a doctor’s negligent or careless mistake, let Carner & DeVita hold them accountable. 

Call us at (631) 543-7070 for more information and to schedule your no-obligation consultation.

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