What constitutes medical malpractice?

UPDATED: Oct 1, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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