Law Office of W. Russell Corker, P.C.

New york medical malpractice attorney

Do I Have a Case

During my 40 years of handling medical malpractice cases, I have received thousands of phone calls from people who usually ask the same question: "Do I have a medical malpractice practice case?" Almost all of these people begin by apologizing for making the call; they never considered themselves the type of person who would ever bring a lawsuit, and never thought that they or a loved one would be the victim of medical malpractice.

​The one thing that they all share in common is that they suspect something went wrong in the care and treatment they or their loved ones received, and the medical profession has not been forthcoming with sufficient explanations to answer their questions and concerns.         


The first thing that a prospective client needs to know is that a bad result, or even obvious bad medical treatment, does not necessarily mean that you have a medical malpractice case. In order to have a medical malpractice case, like any other negligence case, there are three general categories that must be satisfied. Failure of proof in any one of the three basic elements means that there is no case. 

The first element, and usually the most controversial, is liability.

In the context of a medical malpractice case, it means the doctor, hospital or healthcare provider “departed from accepted medical standards." To a layperson, that means did they commit medical malpractice or negligence.

The second element is called "causation.”

This requires proof that the negligent act was the cause or a substantial contributing factor in causing an injury. 

​The third part of the equation is called damages.

This includes not only the injury, but also the pain and suffering, loss of enjoyment of life, lost wages, potentially loss of parental guidance, medical expenses not covered by insurance and other elements that are collectively called special damages.

Determining if a medical provider committed medical malpractice is always a seriously contested issue in every case. The law recognizes that there are differences in abilities between healthcare providers, as there are for all professions in life. Under the law, medical malpractice is defined as when a medical provider's conduct does not conform to "accepted standards of medical care." Exactly what that means is an expansive topic, but two points are important. First, defining the appropriate standard of care under the circumstances is very relative to the facts of the case. As difficult as it may be to comprehend, more often than not the standard of care is not universally agreed upon by the medical profession, at least not when litigation is involved. Rarely is the specific standard of care explicitly documented in the medical literature. At trial, almost without exception, both sides will present medical experts who will give opinion testimony under oath that directly contradicts each other as to exactly what the standard of care was in the particular case. Additionally, the law protects doctors who are required to make numerous medical judgments when treating a patient. The jury is specifically instructed, at the time the judge defines medical malpractice, that a mere error in judgment should not be considered as an act of medical malpractice. Rather, it is only where the doctor departed from accepted standards of care that they, the jury, may find negligence. Accordingly, most medical malpractice cases are heavily defended on the issue of what is called "permissible medical judgment." 

By way of illustration, consider a case involving a failure to diagnose breast cancer. A mammogram performed three months prior to the diagnosis was misinterpreted as a negative study. The patient subsequently felt a lump in her breast, which was biopsied, followed by a lumpectomy and a negative workup for spread of the cancer. In this instance, there likely is negligence, or medical malpractice, in failing to correctly identify the mass that was in the mammogram three months previously. However, because the patient was classified as Stage I at the time of diagnosis, with no evidence of lymph node involvement or distant spread, she was in the most favorable prognostic category with very good statistical odds in her favor of cure. Medical experts would all agree in this situation that the three-month delay was medically insignificant. In other words, the delay did not cause any additional harm to the patient that could be proven with reasonable medical certainty. There is, in fact, negligence, but the outcome would have been the same even if the diagnosis had been made three months prior.

The third element, damages causally related to the negligence, is vitally important in determining whether or not there is a viable medical malpractice case. Medical malpractice cases are handled on a contingency basis, which means the attorney advances the expenses necessary to prosecute the case, which often runs into the tens of thousands of dollars.  Practically speaking, unless there is a permanent and consequential injury, even if there is provable negligence, the case may not have sufficient damage recovery potential to warrant prosecuting the matter, at least for some attorneys. For example, the patient's pain and suffering caused by the negligent medical treatment frequently is a large component part of damages. If the patient's pain and suffering was of a limited duration, and the patient completely recovered, then the damages would be correspondingly small in that situation. Conversely, if the patient sustained a permanent injury and is likely to continue suffering well into the future, the damages in that case would be significant.

Every medical malpractice case begins with a bad outcome or result. The issue typically is whether or not the bad result was caused by negligence, or was merely a known complication or consequence of the underlying disease or condition. Medical malpractice cases are more complicated than other personal injury cases because in most cases the patient has an underlying disease or condition that is present before any medical treatment. In many cases, it is challenging to determine whether the final result was caused by the underlying disease or condition, or by the medical malpractice. The patient's own conduct is frequently involved in many cases, particularly where the patient did not follow up in a timely fashion or take good care of his health. In order to determine if there likely is a case, it is necessary to completely investigate what actually occurred, to analyze a great deal of data and information, and then have an expert, or as is more often the case, a number of experts, review all of this data and be willing to testify that there was a departure from accepted standards of care that caused the patients problems.

While the above is a very abbreviated description of what goes into deciding if there is or is not a medical malpractice case, the answer to this question of is often very complex, requiring a great deal of time, effort, expertise and money to decide. Determining if there is a case or not requires that the client and the attorney work together as a team. Obviously, the more experienced the attorney is with medical malpractice cases, the greater the likelihood of ultimate success with your case.