When somebody dies or is in terrible shape after a medical procedure, the family wants to do something to help.  It is an excellent idea to call a medical malpractice lawyer whenever you suspect something might have been done wrong.  An experienced attorney will be able to ask the right questions and give you some idea about the viability of the case right away.  Unfortunately, some cases just can’t be made, due to lack of evidence or lack of damages, but this doesn’t mean there wasn’t a mistake or harm done.  Medical malpractice cases are extremely expensive to bring due to the exorbitant amounts of money that doctors charge to be expert witnesses against other doctors.  You can sit and ponder this well into the night, or you can call an attorney and either gets things moving or, at very least, get some closure.


When I first started doing medical malpractice I got a call from a lady who told me her doctor operated on the wrong foot.  Wow, I thought, this is a great case, so I bumped her up to speak to my boss.  He spoke to her and came back and told me there was “no case.”  No case?  How could that be?  Well, the doctor did operate on the left foot when it should have been the right, but he didn’t do any real harm to that foot, and did the operation on the correct foot for free.  The lady is fine now, with both feet in great shape.  There was negligence – in fact the doctor admitted her made a mistake, but in order to recoup the expense of a lawsuit, it’s necessary to have permanent serious damages, not just a mistake.  When somebody completely recovers, it’s usually not possible to make a malpractice case.

One of the first questions you will be asked when you call a medical malpractice lawyer is, “how old are you?” (or how old is the person you are calling for.)  If a medical mistake causes the demise of somebody so old that there is little left of their life expectancy, there is usually not enough in damages to collect for wrongful death due to the expense of the litigation.  It goes hand in hand that somebody extremely old is likely to be so frail and with multiple medical problems, that it would be difficult to prove that the medical mistake was what caused the death and not something else.  I always recommend reporting this type of malpractice to the Department of Health, as they will investigate and have the power to issue fines and take away licenses for malpractice even if there are not enough damages for a lawsuit.  That’s what I tell people when I have to give them the bad news that we can’t take their case.  There can be justice anyway.  This is what I told the man who called an told me that the hospital “killed” his 100-year-old grandmother who had multiple serious medical conditions.

It is always possible to sue for pain and suffering no matter how old a person is.  If an 85-year-old person in good health is a victim of malpractice and has to live in a much-worsened condition for many years, there are ample damages to collect for pain and suffering.  This is why you should always call a medical malpractice attorney, it’s very difficult for a lay person to analyze individual facts to determine whether or not there is an actionable case.


Many medical procedures have substantial risks.  Often the more necessary the procedure, the greater the risk.  For example, the risks of open heart surgery are very high, but if a person has a heart problem that would be fatal, it is clearly worth the risk.  One of the risks is stroke, which can happen even if the doctor did everything perfectly.  When a person dies or is in worse condition due to a risk of a procedure for which they gave informed consent, there is no malpractice.  Not every tragedy can be a lawsuit, and when I explain this to clients, I always remind them that the lawsuit would not restore the person to health or bring them back.

Another area where this comes up is “failure to diagnose.”  This is why your dentist probably checks you for mouth cancer when you go for a check-up – and this is a good thing, you would want that mouth cancer to be caught early, wouldn’t you?  The gray area is whether a doctor outside the specialty was informed of enough symptoms to refer a patient for testing or to an appropriate specialist.  Let’s say you are regularly going to a podiatrist for a minor condition such as “plantar fasciitis” and he’s treating you with injections and physical therapy.  He would not be expected to diagnose cancer or a heart condition, but he might be expected to diagnose a circulation problem that could seen on your feet.  A primary care physician is held to a very high standard to ask questions and refer patients for testing and to specialists.  If you regularly see a doctor who misses a condition that is now much harder to treat or becomes fatal, that’s actionable “failure to diagnose.”

There is not always just one way to treat a condition.  In this case, the doctor can chose from among different treatments as long as they are all approved methods of treatment.  If surgery and chemotherapy are the standard way to treat a type of cancer, and with a high success rate, a doctor giving vitamins instead would be committing malpractice.   If a patient refuses to consent to a life-saving procedure, the doctor will usually request that the patient document this refusal so that they are not held liable for the patient that refuses treatment.


Putting this all together, we can see how just like any other negligence lawsuit, a medical malpractice attorney will need both “liability” and “damages” to bring a case.  The liability needs to be clear and the damages need to be great before the substantial investment can be made to bring this type of cases.  If you have any questions, please give us a call at 718-261-8114.


2018-08-24T21:51:35+00:00By |0 Comments

About the Author:

Alyce Wittenstein is a world class attorney, blogger and filmmaker. She began working at the firm in 1985 as a managing paralegal, learning all the practices and procedures of the firm from Mr. Wittenstein and the staff. From 1995-1998, she attended CUNY Law School where she made a mark as a teaching assistant for Civil Rights leader Haywood Burns. She founded a Human Rights Delegation to Haiti and studied Constitutional Law with Supreme Court Justice Ruth Bader Ginsburg. Working at the Equal Opportunity Employment Commision (EEOC), she learned a great deal about Employment Discrimination matters. She brought her knowledge of the Personal Injury practice and her passion for Civil Rights to the firm when she was admitted to the Bar in 1999. In 2000, she became a partner and the firm name was changed to Wittenstein & Wittenstein, Esqs. PC.

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