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Legal Requirements of Medical Malpractice

Legal Requirements of Medical Malpractice

What are the legal requirements of medical malpractice?

New York Medical Malpractice

Medical malpractice is the negligence of a doctor or surgeon.  Negligence is the failure to use reasonable care under the circumstances, doing something that a reasonably prudent doctor or surgeon would not do under the circumstances, or failing to do something that a reasonably prudent doctor or surgeon would do under the circumstances.  Negligence is a deviation or departure from accepted medical or surgical practice.

Requisite Skill

A doctor or surgeon who performs a medical or surgical procedure upon a patient is obligated to have that reasonable degree of knowledge and skill that is expected of an average doctor or surgeon who performs that treatment or operation in the medical community in which the doctor practices.  The law recognizes that there are differences in the abilities of doctors and surgeons, just as with anyone else.  To practice surgery, a surgeon is not required to have the extraordinary knowledge and ability.  Some doctor or surgeons are recognized for their exceptional ability, but the law does not require it.  Every doctor or surgeon is, however, required to keep reasonably informed of new developments in their field and to practice medicine or surgery in accordance with approved methods and means of treatment in general use.  A doctor or surgeon must also use her best judgment and whatever superior knowledge and skill she possesses, even if the knowledge and skill exceeds that possessed by the average doctor or surgeon in the medical community where the doctor practices.

Bad Result

By undertaking to perform medical treatment or a surgical procedure, a doctor or surgeon does not guarantee a good result.  The fact that there was a bad result to the patient, by itself, does not make the doctor liable for negligence.  The doctor is liable only if she was negligent.  Whether the doctor was negligent is to be decided on the basis of the facts and conditions existing at the time of the claimed negligence.

Error in Judgment

Sometimes, a doctor or surgeon may face medically acceptable alternatives in order to treat the patient.  In such a case, she must use her judgment as to what alternative provides the best hope for the patient.  A doctor is not liable for an error in judgment if she does what she decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances.

Proximate Cause of Injury

If the doctor is negligent, that is, lacks the skill or knowledge required of her in performing the surgical procedure, or fails to use reasonable care in performance of the procedure, or fails to exercise her best judgment, and such failure is a substantial factor in causing harm to the patient, then the doctor is responsible for the injury or harm caused.

Informed Consent

Before obtaining a patient’s consent to treatment or an operation or invasive diagnostic procedure, a doctor or surgeon has the duty to provide certain information concerning what the she proposes to do, the alternatives to that operation or procedure and the reasonably foreseeable risks of such operation, procedure or medication. It is the doctor’s or surgeon’s duty to explain, in words that are understandable to the patient, all the facts that would be explained by a reasonable medical practitioner so that when the patient does, in fact, consent, that consent is given with an awareness of (1) the patient’s existing physical condition; (2) the purposes and advantages of the treatment, operation, procedure or medication; (3) the reasonably foreseeable risks to the patient’s health or life which the treatment, operation, procedure or medication may impose; (4) the risks involved to the patient if there is no operation, procedure or use of medication; and (5) the available alternatives and the risks and advantages of those alternatives.


In order to obtain a recovery for damages, it is the injured party’s burden to establish the legal requirements of medical malpractice.

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