Medical professionals owe a duty to their patients to not cause foreseeable, preventable harm, and to treat the patient in accordance with accepted medical standards. If this duty is breached, the patient might have a viable claim founded in medical malpractice.
By way of example, consider the following case out of the New York Supreme Court of Bronx County titled, Dalmau v. Metro Sports Physical Therapy 48th Street, P.C. On April 25, 2014, said court made a ruling on the case that allowed the trial to move forward.
The basic facts of the case are as follows. Dalmau received surgery on his left shoulder and bicep. The surgery was apparently uneventful and Dalmau was referred to the defendant for physical therapy, but restricted such therapy to the shoulder only, noting that there should be “no active range of motion of the biceps”.
The defendant therapists created a physical therapy plan and the plaintiff’s first few sessions went well. However, on the third day of therapy, a new exercise was added to the regime. This exercise required bicep movement. The physical therapist assisted the patient during the exercise, but the plaintiff experienced pain in his left bicep, which continued over the next few days. When he returned for another session, the defendant noted a possible tear in the plaintiff’s bicep.
Dalmau returned to his doctor and the tear was confirmed; he was in pain and his left bicep was hanging lower in comparison to his right bicep. The medical malpractice suit was commenced alleging that the defendant “deviated from good and accepted standards of physical therapy practice”. The defendant countered with a motion to dismiss the case against them.
In a battle between experts, the plaintiff’s experts testified that the bicep exercise used by the defendant contradicted the surgeon’s prescription, and was applied with too much pressure, which overall, deviated from accepted medical practice. The defendant’s experts testified otherwise and while the court noted some procedural errors on the plaintiff’s side, the plaintiff ended up prevailing. As the court noted, the conflicting evidence of the experts that raises issues of credibility and fact precludes a dismissal.
This is because issues of fact and credibility are areas only to be decided by a jury. Experienced medical malpractice attorneys are aware of this and will use the best experts available in order to successfully prove a plaintiff’s case.
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