What constitutes medical malpractice?
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What constitutes medical malpractice?
My 85 year old mother had knee joint replacement. The day after the operation she was able to walk, however while in hospital the repair failed; her muscle became unattached. It could have been due to a fall she had or while getting into bed one night which caused her to be in intense pain. They kept her in the hospital for 6 weeks, 5 weeks longer than expected and at least 4 weeks after the muscle tear. The tear left her being hardly able to walk or stand. They released her saying that she was medically independent which clearly she wasn’t as she went into the hospital being able to walk and left not being able to walk. Shortly after coming home she fell and I made the doctor see her. He rushed her into surgery to repair the damage. She now is in a leg immobilizer for 6 weeks. It seems like gross negligence by both the hospital and the doctor. The hospital only took an X-ray and never notified the doctor nor administered any other testing to see the extent of the damage. My mother lives with my family and I had to become her full care system. After the 2nd surgery she is in rehab again but almost all of her medicare days have been wasted from this. Does she have grounds for a lawsuit and/or can I file a suit as her child? Her quality of life diminished tremendously because of this and she is also now having other side complications such as massive reduction in breathing ability and now
is on 02.
Asked on December 13, 2018 under Malpractice Law, New York
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 5 years ago | Contributor
You mother would have to sue, not you; as the one treated and injured, it is her claim, not yours.
Malpractice is the provision of medical care which is negligent or careless by then-current medical standards (I.e. not merely in the opinion of laypeople) and which provably caused the harm or injury (so if the harm would have occurred any way, there is no claim or case).
The first question then becomes, do you have any medical evidence, such as what you have heard from other doctors, that the medical care was negligent or deficient and also that it caused the harm to your mother? If there is medical evidence of these things, your mother may have a case and should consult with a malpractice attorney.
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