Having surgery can be a terrifying experience. Medical mistakes are one of the leading causes of death in the United States. You may think that if a doctor leaves a sponge in you or makes a mistake and kills your grandmother during surgery, you would simply sue the hospital. This is not always the case. Knowing who to sue in a medical malpractice case can be confusing. It can be helpful to know a few basic facts about medical malpractice claims and the actions for which hospitals are responsible or not responsible.
The state of New York currently does not have tort reform. Therefore, an injured person will not be limited in the amount of money that they can ask for in a lawsuit.
When a patient is injured by a member of the hospital staff, the hospital itself will generally be liable. This is because of a concept known as respondeat superior. This is a Latin phrase that simply means, “let the masters answer.”
In a case in which a member of the hospital staff has injured a patient, a personal injury attorney would have to prove that the staff member was doing their job at the time of the accident.
The first thing that must be established in such a case is whether or not the employee was on the clock at the time. If the employee was not on the clock when they perform the harmful action or if they were acting outside of their normal job responsibilities, the hospital might not be considered liable for the patient’s injuries.
If a nurse who works for the hospital gives a patient the wrong dose of medication while they are on their rounds, the hospital will almost certainly be responsible for their actions. If a nurse who works for the hospital decided that alternative medicine would be better for a certain patient and they gave that patient the alternative medicine without the approval of the hospital or a doctor, the patient might not be able to sue the hospital if they got sick. The nurse would have acted on their own.
A good personal injury attorney will often file suit against the person or entity who has the most money in a certain situation. A hospital will carry millions of dollars worth of liability insurance, and an individual working at the hospital will not.
When You Would Sue the Doctor
If a doctor makes a mistake that causes injury, you would almost always sue them individually rather than the hospital. There are some situations in which the doctor may be an employee of the hospital, but it is very rare.
A patient might be able to sue a doctor in a case where one of the hospital employees was directly under that doctor’s supervision when they made a mistake. The doctor would generally have to be present at the time of the mistake in order to be considered liable. In some cases, a doctor may bring members of their own staff along when performing surgery. In this case, the doctor would have full responsibility.
There are some gray areas when it comes to knowing who to sue. If a surgical assistant did not sanitize the equipment properly or cleaned and delivered the wrong kind of equipment to the doctor in the OR, knowing who to blame might be a bit more perplexing.
A malpractice lawsuit requires quite a bit of patience on the part of the plaintiff and a good deal of research on the part of the attorney. Knowing who you want to sue is the first step in a successful legal action.