I had pain in my lower abdomen. I went to the urgi-care center and was diagnosed with gastroenteritis. The doctor gave a script for some medicine. The medicine did not work. I ended up going the hospital in severe pain about 36 hours later. The emergency room doctor told me that my appendix burst. I needed emergency surgery to save my life. The surgeon told me he believed the urgi-care center doctor should not have sent me home with a prescription. Do I have a claim?
Standard of Care
You possibly have a claim. But you first need to understand negligence cases that involve medical malpractice. Medical malpractice is the “deviation from accepted practice.” This means that the urgi-care doctor was negligent in your care if they deviated from acceptable medical practices in the community.
So, just because your surgeon told you that the urgi-care doctor should not have sent you home, does not mean you have a malpractice case. You would need to obtain all of your medical records and have them reviewed by a doctor familiar with urgi-care practice (like a family practice doctor). As explained in a prior post, the difference between ordinary negligence claims and medical malpractice claims is the standard for proof. So unlike a car accident case (with which almost everyone is familiar), almost no-one, other than another doctor, is familiar with the standard of care for a doctor. So your case must be evaluated by a doctor familiar with family practice in your area. Then during your trial, a doctor would have to testify about the standard of care for a doctor as well as how your doctor’s conduct deviated from that standard of care. Anarumo v Herzog, 201 AD3d 778, 162 NYS3d 381 (2d Dept 2022).
Your particular surgeon may or may not know the standard of care for family doctors in your area. All your surgeon really said was that he would not personally have discharged you with stomach medicine. This is different than the standard of care for a family doctor.
New York
Different jurisdictions have different approaches to the problems inherent in medical malpractice cases. In New York, a plaintiff must serve a certificate of merit with a summons and complaint for a medical malpractice case. CPLR section 3012-A. The certificate of merit attests that plaintiff’s attorney has had the case reviewed by a medical expert and the case has merit. (There are exceptions to this rule such as the unavailability of records.) The plaintiff does not identify the expert.
New Jersey
New Jersey takes a different approach. N.J.S.A. 2A:53A-26. The plaintiff must serve the “affidavit of merit” within 60 days after service of an answer by defendant. The expert is identified and signs the affidavit of merit. The expert must be currently in practice and similarly credentialed (as in Medical Board certifications) as the defendant doctor.
By James Santner, Esq.
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