The 4 Ds of Medical Malpractice | Free Consultation (2024)

Any case of medical malpractice, sometimes referred to as medical negligence, must comprise the following elements:

1. Duty
2. Dereliction
3. Direct causation
4. Damages

The four Ds of medical negligence are essential to proving your claim and recovering compensation to pay for your care, lost income, pain and suffering, and other damages.

For a court to find that medical negligence occurred in your case, you must be able to prove each of these four D’s of malpractice based on a preponderance (i.e., a majority,) of the evidence.

This would typically be an overwhelming undertaking for victims or their families to do on their own, especially when doctors, hospitals, malpractice insurance providers, and legal teams want to pay out as little as possible. Working with an attorney will make this process easier.

Duty

Doctors, surgeons, nurses, and other medical professionals owe their patients a duty of care. This duty requires that professionals treat their patients in a manner that is consistent with the generally accepted standards of medical practice. In other words, they must provide the type of treatment and level of treatment as would a reasonably skilled and competent healthcare provider:

• With a similar background
• In the same medical situation
• In the same geographic area

The key to establishing this duty in a medical malpractice case is proving that the plaintiff and the defendant had a doctor-patient relationship. This relationship also extends to a clinic or hospital. One way to prove this relationship is by providing medical records. This type of documentation offers the connection that a court needs to see: You sought this medical professional’s help, and they knowingly accepted you as a patient.

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Dereliction

When a medical provider fails to fulfill their obligations to their patients, the behavior is considered a dereliction of duty. When the plaintiff’s attorney proves this violation of duty, they establish medical negligence. Medicare offers the following examples of what they term, “Quality of care complaints”, which for the purposes of discussion here, may also be understood as examples of medical negligence:

• Failure to diagnose a condition
• Failure to treat a condition or failure to adapt treatment after the condition changes
• Unnecessary treatment or surgery
• Inappropriate treatment or surgery
• Discharging from a hospital too soon
• Drug errors

Proving medical negligence is a challenge, especially considering that the bulk of the evidence about treatment typically comes from the medical provider’s documentation, which often—and understandably—only supports the defendant’s case. Medical negligence lawyers typically have to reach out to objective, qualified medical experts.

These experts, of course, have no relationship with the medical treatment provider(s) charged with malpractice. They will review the files and attest to the accepted medical practice—and whether the physician or other provider(s) met this accepted medical practice.

Still, medical negligence in and of itself does not necessarily cause injury. When there was negligence but no resulting injury, the negligence does not constitute medical malpractice. However, negligence leads to a medical malpractice claim if the following two D elements—direct causation and damages—are established.

Direct Causation

In 2016, The BMJ published an analysis of medical death rates over the course of eight years. The published report reveals that medical error is, tragically, the third-leading cause of death in the United States. When a patient suffers an injury and proves it was the direct result of medical negligence, a medical malpractice claim will be considered.

Following medical negligence, the injury sometimes manifests as:

• The worsening of a medical condition
• The need for new or further treatment
• Unexpected or unreasonable complications

Consider a patient with cancer, for example. A doctor does not cause cancer; however, their delayed diagnosis might negatively affect the patient’s prognosis, require additional treatment, or worsen the outcome of their condition. The cancer could progress while they waited for an accurate diagnosis, and a relatively treatable condition could metastasize to other parts of the body.

The Burden of Proof for Causation

In a medical malpractice case, the burden of proof for causation lies with the plaintiff. Although one might think that causation would be simple to prove, this is not often the case. Certain procedures, such as surgery, carry accepted risks. Even with the accepted medical practice, complications occur. It makes proving that the medical provider’s negligence caused the injury a challenging or, at best, fiercely disputed matter.

Furthermore, the plaintiff in a medical malpractice case must prove causation by a preponderance of the evidence. They must convince the jury it was more likely than not that the defendant’s actions caused the plaintiff’s injury. As with dereliction, a plaintiff’s lawyer will typically call in a medical expert—or a number of medical experts—to testify that the defendant’s actions caused the patient’s injury.

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Damages

Medical malpractice, like other types of personal injury, causes harm in three primary ways:

• Financial damages
• Emotional losses
• Physical injuries

When a victim or their family members file a malpractice insurance claim or lawsuit in New York State, they seek financial recovery for all three of these types of harm. To this end, a medical malpractice claim sometimes involves two types of compensatory damages: actual damages and general damages.

Actual Damages

Actual damages refer to economic losses the patient experienced due to their injury. While every case is different, actual damages, also referred to as economic losses, include:

• Medical and hospital expenses
• Physical therapy
• Prescription drugs
• Lost income from missing work
• Related expenses and losses
• Miscellaneous costs associated with treatment and care, such as hospital parking

General Damages

General (non-economic) damages cover the harder-to-quantify losses the patient suffers because of their injury. These are intangible losses. They do not have a direct monetary value, but the victim still deserves compensation for them. General damages include:

• Mental anguish
• Pain and suffering
• Disfigurement
• Loss of consortium
• Emotional distress

When the victim suffers lasting injuries and impairments, future damages are also considered. This includes future medical bills for treatment and management of their condition and diminished potential future earnings.

An attorney will know how to establish a value for your future and intangible losses, as these are much more challenging to calculate than your current economic losses and expenses. This is a crucial part of recovering an appropriate payout in your case. Without a good understanding of your damages, you cannot demand a just settlement or present a solid case to the jury.

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Work with a Medical Negligence Lawyer on Your Case

Cases involving medical negligence and the medical malpractice lawsuits that result are among the most complex legal matters. Doctors and hospitals tend to be well prepared to protect themselves against these claims, and malpractice insurance providers make countering these claims their life’s work.

You do not have to try to navigate this claims process and take on the hospital, a doctor, or another liable party on your own. Working with a New York medical malpractice lawyer will make handling your claim much easier. Your attorney will:

• Review the facts of your case and advise you on your options for free
• Represent you based on a contingency fee
• Keep you updated throughout your case
• Identify the liable party or parties in your case
• Manage all communication with the liable parties, insurance companies, and adverse legal teams
• Investigate what happened and gather evidence
• Analyze the evidence to develop a strong claim or lawsuit
• Value your case and negotiate for an appropriate settlement
• Take your case to trial if necessary

There are deadlines to file, so you should speak with a law firm as soon as you suspect medical negligence caused the injuries in question.

Let Our Team Review Your Options Today for Free

If you sustained an injury due to medical negligence, you deserve compensation. will work to establish the four Ds of medical negligence for your case with compelling evidence. We will calculate your damages, file your claim, and negotiate with insurers. If necessary, our team will file a lawsuit on your behalf to recover your damages in civil court.

We are advocates for the injured people of New York, and we will work to represent your rights and your interests. Furthermore, because we work on a contingency-fee-basis, you pay us nothing unless and until we win your case.

Call Friedman & Simon, L.L.P. today for a free consultation.

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