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Medical Malpractice Glossary


A

Adjudicate: To decide or settle something in a legal setting. Affidavit: A voluntary statement or declaration of facts that has been written down and confirmed under oath. Allegation: An assertion, declaration or statement that is made in a pleading by one of the parties to the action and tells what that party intends to prove. Answer: Written response in a civil case; in it, the defendant admits or denies the allegations contained in the plaintiff's complaint. Arbitration: A process for deciding a legal dispute out of court; a substitute for an ordinary trial. Assumption of risk: In the law of negligence, as a defense, a defendant's allegation that the injured plaintiff recognized the danger of the plaintiff's course of action but, nonetheless, willingly chose to risk such danger.

C

Case law: Law based on previous decisions of appellate courts. Civil: Generally pertains to disputes, not involving crimes, including family matters, contracts, collection of debts, and compensation for personal injury or property loss. Collateral source rule: Under this rule, compensation awarded to an injured party shall not be reduced by the amount of compensation available to him from his insurance company or other independent sources. Common law: Law that derives its authority solely from usages and customs of the past, or from the judgments and decrees of courts (the latter known as "case law"). Comparative negligence: The doctrine of comparing degrees of fault among the responsible parties. Complainant: See "plaintiff". Complaint, civil: The first pleading in a civil case filed by the plaintiff. It alleges the material facts and legal theories to support the plaintiff's claim against the defendant. Contingency fee A fee arrangement in which the plaintiff and his or her attorney agree that the fees due to the attorney will be determined by the amount of the judgment granted in the plaintiff's favor. Continuance: The adjournment or delay of a scheduled session of a court. Cross-examination: The questioning of a witness of one party by the opposing party during a trial, hearing or deposition.

D

Damages: Monetary compensation claimed by a person who has suffered a loss or injury to his person, property or rights as a result of the negligence or unlawful conduct of another. Decedent: A dead person. Decree: An order of the court. A final decree is one that fully disposes of the litigation; an interlocutory decree is a preliminary order that often disposes of only part of a lawsuit. Default: Failure of either party to file required documents or appear in a civil case within a certain period of time. Defendant: The person or party sued in a civil case or accused in a criminal case. Deposition: The testimony of a witness, taken out of court and usually prior to trial. Direct examination: Questioning of a witness by the party who calls the witness. Directed verdict: In a trial, a judgment entered by the judge without allowing the jury to participate. Discovery: The pre-trial process, such as a deposition, by which one party discovers the evidence that will be relied upon at trial by the opposing party. Dismissal with prejudice: An order to dismiss a case in which the court bars the plaintiff from suing again on the same cause of action. Dismissal without prejudice: An order to dismiss a case in which the court preserves the plaintiff's right to sue again on the same cause of action.

E

Evidence: A fact presented in court through the testimony of a witness, an object or written documents. Exhibit: A document or object that is offered into evidence during a trial or hearing.

I

Indemnity: An agreement wherein one party financially protects another against an anticipated loss. Interrogatories: A form of discovery in which one party submits a series of written questions to the other party, and to which the latter is bound to answer under oath.

J

Judgment: The official decision by a court regarding the rights and claims of the parties to a civil or criminal lawsuit. Judgment notwithstanding the verdict: A judgment entered by order of the court for one party, although there has been a jury verdict for the other party.

L

Liability: A legal responsibility or obligation. Lien: An encumbrance, upon real or personal property, that secures the payment of a debt or the performance of a duty. Litigant: One of the parties involved in a legal action. Litigation: The process of settling a dispute through the court system.

M

Medical lien: The right of a hospital, doctor or health care provider to assert an interest in personal injury recoveries to the extent of the cost of the treatment or service provided. Medical negligence: Failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession. Those standards are based on what a reasonable person with the requisite knowledge and skills would or would not do. Mistrial: An erroneous invalid trial that cannot stand in law. Motion: An application for a rule or order, made to a court or judge.

N

Negligence: Failure to exercise that degree of care that a reasonable person would exercise under the same circumstances. When that failure causes another person to suffer an injury or financial loss, that person may be entitled to just compensation through our civil justice system.

P

Plaintiff: The party who initiates a legal action; in a personal injury lawsuit, the person who alleges that he or she has suffered monetary damages due the negligence of another party. Pleadings: Written documents stating the allegations and claims of the opposing parties in a legal dispute. Preponderance of evidence: The relative weight, credit and value of the evidence presented by adversaries in a trial. In a civil trial, the jury is charged with reaching a verdict based on this standard, as opposed to the "reasonable doubt" standard in a criminal trial.

R

Rebuttal: Evidence that attempts to explain, counteract or disprove facts given in evidence by the other party. Re-direct examination: Opportunity to present rebuttal evidence after one's evidence has been subject to cross-examination. Retainer: Advance payment of fees, or fees and costs, made by a client to an attorney when the client retains the attorney to act for him or her.

S

Stipulation: An agreement, admission or concession made in a judicial proceeding by the parties or their attorneys, thus relieving a party of its obligation to produce evidence in support of an argument or allegation. Subpoena: A legal document issued by the court ordering a person to appear as specified and give testimony and/or produce evidence. Subrogation: A process by which a third party is put in the place of a creditor so that the rights and securities of the creditor pass to that third person. For example, in a personal injury matter, an insurance company may exercise its right of subrogation to place a lien on a plaintiff's award or settlement in order to achieve full or partial reimbursement for insurance benefits advanced to the plaintiff.

T

Tort: A civil wrong, giving rise to a cause of action, independent of contract. Transcript: The official verbatim record of court proceedings. Trial: A formal presentation of facts to a court or jury in order to reach a legal resolution.