Medical malpractice is the failure of a doctor or other health professional to provide reasonable care in medically treating his/her patient. Failure to use reasonable care arises from a doctor failing to do something that a reasonably careful doctor would have done for his patient, or, on the other hand, doing something that a reasonably careful doctor would not have done.
In New York, as a general rule, you have two and a half years to sue a doctor, hospital or health provider from the time of the alleged medical malpractice. However, important exceptions apply, so if you are even considering a malpractice claim, contact our Long Island medical malpractice lawyers immediately.
At Carner & DeVita, our medical malpractice lawyers in Long Island have represented victims for over 50 years. Call us today at 631-543-7070 or contact us online for a free, no-obligation consultation.
What Is Medical Malpractice?
A bad result from a medical procedure is not necessarily malpractice. Medicine is an imprecise field and quite often, a “bad result” turns out to be an acceptable risk of the medical procedure, rather than medical malpractice.
In order to prove a case for medical malpractice, four factors must be proven:
1. Duty of Care: Duty of care exists when a doctor-patient relationship exists. This is typically easy to prove; any doctor who has been involved in your treatment has generally established a doctor-patient relationship. Duty of care obligates medical professionals to provide treatment with a certain level of care a skill.
2. Breach of Duty: When a doctor fails to uphold their duty of care, they could be held liable under New York medical malpractice laws. Typically, a board will determine whether another doctor reasonably would’ve made the same or similar decisions under the same circumstances. If a doctor did not act competently, they’re said to have breached their duty of care.
3. Injury Resulted from Treatment: Essentially, there must be a link between the injury and illness and the treatment received. For instance, a patient suffering complications after a surgery that aren’t related to the surgeon’s performance may not be eligible for compensation under medical malpractice laws.
4. Recoverable Damages: Victims must be able to prove they suffered actual damages as a result of the medical professional’s actions. These could be economic damages, such as lost wages, or noneconomic damages, such as pain and suffering. If no harm was suffered due to an error on behalf of the medical professional, malpractice laws generally don’t apply.
Contrary to what most people believe, a doctor is not responsible for what turns out in hindsight to be an error in medical judgment if the doctor made that judgment at the time after careful evaluation of all the relevant facts, and if it was a medical judgment that a reasonably careful doctor could have made under the same circumstances.
For instance, a doctor prescribing medicine that usually cures a disease, but doesn’t work in a specific instance, doesn’t necessarily constitute malpractice.
But if a doctor prescribes medicine that the patient is allergic to, and that allergy is listed on the patient’s chart, it could be considered medical malpractice.
Our Long Island personal injury lawyers can provide more information on the matter.
Radiation Overexposure: A Dangerous Form of Medical Malpractice
Americans receive far more medical radiation than ever before. This is because the average lifetime dose of diagnostic radiation has increased sevenfold since 1980, and more than half of all cancer patients receive radiation therapy.
More and more cancer patients are receiving radiation therapy in the form of IMRT (intensity modulated radiation therapy), a rapidly growing therapy. Unfortunately, we believe that the pace of technology is getting ahead of proper, common sense safety protocols.
Although radiation therapy, particularly in the treatment of cancer, has shown great usefulness, the tragic fact remains that when safety rules and protocols for the administration of radiation treatment are violated, the injury and harm can be deadly.
Intensity Modulated Radiation Therapy
IMRT stands for “intensity modulated radiation therapy” and differs substantially from standard linear accelerator radiation technology.
The concept of IMRT radiation therapy is that using this relatively new technology, the radiation oncologist, with the assistance of a medical physicist and radiation therapist, can better target the tumor for radiation and avoid over-radiating normal cell tissue.
In essence, instead of one steady stream of radiation, the patient receives a “modulated” stream of radiation, digitally targeted to mimic the precise dimensions of the tumor. This type of radiation plan is quite complex and involves significant time and effort to avoid over-radiation and the inadvertent radiation of otherwise healthy cell tissue.
The Dangers of IMRT
Although there are some professional guidelines for use of this treatment, IMRT machines and technology are being sold in a largely unregulated marketplace with manufacturers competing by offering the latest in technology, with only a cursory review by the government and hospitals buying the IMRT equipment to lure patients and treat them more quickly.
Problems with the IMRT technology extend to problems with the software that actually runs the machines as well as deficiencies in the experience and licensing of the technicians programming, checking and administering the IMRT machines, particularly, the medical physicists and radiology technicians.
If you are a candidate for this type of treatment, take a moment to review some of the literature concerning IMRT Quality Assurance. You and your doctor should consider all of your options. While IMRT is often safe, it’s not always the best option, and there are dangers and side effects to consider. While many of the above problems have been addressed, there may still be some issues that can make cause the IMRT treatment to go wrong.
Despite the pivotal role medical physicists play in ensuring patient safety, at least 16 states do not require licensing or registration of medical physicists and eight states allow radiation technologists to perform medical imaging (other than mammography use) with no credentials or educational requirements. Fortunately, Medicare and Federal officials are beginning to deal with IMRT and radiation treatment abuses more aggressively.
If your doctor prescribes IMRT, be sure to get at least one or two other opinions. You may be eligible for other and better treatment options.
At Carner & DeVita, we believe that radiation therapy in the great majority of cancer treatments provides benefit to cancer patients. Be we know there is a small minority of situations where radiation therapy is unintentionally misapplied, whether due to software error, or lack of proper training and credentialing of the radiation oncologist, medical physicist and/or radiation technologist.
Unfortunately, in cases involving medical error due to over-radiation, particularly those administered through IMRT technology, the consequences can be devastating for the patient.
Speak with a Radiation Overexposure and Medical Malpractice Lawyer in Long Island Today
Our law firm has taken great interest in prosecuting medical malpractice cases against the responsible parties. If you suspect that yourself or a loved one has suffered malpractice at the hands of a medical professional, such as being over-radiated and injured as a consequence of IMRT radiation therapy or any other form of radiation modality, Carner & DeVita is here to help.
Our medical malpractice lawyers in Long Island have helped victims get the compensation they deserve for over 50 years. Call us at 631-543-7070 or contact us online for a free, no-obligation consultation.