Medical malpractice occurs when a patient suffers harm because of a doctor or medical professional providing negligent or incompetent care. All doctors must meet a medical standard of care. Some common types of medical malpractice include failure to diagnose or misdiagnosis, improper treatment, and failure to warn the patient of risks. If a doctor commits any of those mistakes, he or she could face a claim of medical malpractice. If you or somebody you love was injured in New York and suspect malpractice, consider speaking with an experienced Nassau County medical malpractice attorney as soon as possible. Call (516) 451-7900 to schedule a free consultation.
New York Medical Malpractice Laws
When a health professional violates his or her duty of care and it leads to injury, victims should consider a viable medical malpractice claim to compensate them for their suffering. Under New York law, an individual who suffers harm as the direct result of a health care provider’s negligence can file a claim to compensate for any damages that result. Discuss your case with a firm that knows the laws that govern medical malpractice in New York and will guide you in determining the legitimacy of your claim.
A Certificate of Merit
In New York, any plaintiff’s attorney who files a medical malpractice lawsuit must also submit a certificate of merit with 90 days of the action. This document must highlight the following:
- It must state the attorney reviewed the facts of a victim’s case and consulted with a physician. Based on the results of the consultation, the attorney believes a viable claim for medical malpractice exists.
- If a certificate of merit does not include a consultation with a physician, the attorney must certify that he or she made three attempts to do so in good faith with three separate physicians.
The laws governing medical malpractice in New York can be complex and require the guidance of an experienced Nassau County medical malpractice attorney. If you or a loved one suffered harm at the hands of a medical provider, you may be eligible for compensation.
How Long Do You Have to File a Medical Malpractice Claim in New York?
New York, like all other states, observes a statute of limitations for filing a medical malpractice claim. Under this law, plaintiffs who believe they have grounds for medical malpractice claims must file an action with the appropriate court system within a certain time frame. Plaintiffs have two years and six months from the date that the medical malpractice occurred. If that malpractice resulted from ongoing treatment, the 30-month clock begins to run on the date the treatment concludes. Failure to comply with this rule could result in courts dismissing the case.
Limited Discovery Exceptions to the Statute of Limitations
An important exception to the statutes of limitations exists in New York. The limited discovery rule applies to situations in which a plaintiff may not reasonably discover an injury until after the standard statute of limitations passes. Under the limited discovery rule, a plaintiff may have a different statute of limitations only if a foreign object was left in a patient’s body (such as after surgery). In this case, a plaintiff has one year from the discovery of the foreign object to file a claim.
Cases Involving Minor Children
New York, as in many other states, also has an exception for cases involving minor children. When medical malpractice occurs in the treatment of a child, the statutory clock does not begin to run until after the child’s 18th birthday. However, regardless of the child’s age when medical malpractice occurred, you cannot extend the suit more than 10 years from the date of the occurrence.
Consequences for Missing Deadlines
If filers attempt to file civil cases for medical malpractice after the filing deadline occurs, they will likely lose the right to sue their health care providers – unless one of the exceptions outlined above applies. It’s imperative to consult a personal injury attorney as soon as possible after an alleged act of medical malpractice occurs.
Limits on Damages
The state of New York does not impose any caps on punitive or economic damages in a medical malpractice case. People who believe their providers committed negligence can collect as many damages as a jury or insurance company deems fair based on several factors, including the cost of medical care, loss in life quality, and physical pain and suffering the claimant suffers.
Compensation for Medical Malpractice Victims in Nassau County
If you win a medical malpractice lawsuit, the court may award you general, special, and punitive damages. General damages encompass a patient’s suffering that cannot be easily quantified. Some general damages include loss of enjoyment of life, physical and mental pain and suffering, and loss of future earning capacity.
Special damages cover the losses that are more easily quantifiable. Some special damages include medical expenses, fees, and lost wages from days that you needed off of work to recover. Special damages are more exact than general damages because of the clear monetary values.
Punitive damages focus on punishing the doctor who committed medical malpractice, as opposed to helping the victim recover. The court will assign punitive damages if it believes that the doctor was intentionally or egregiously harmful and deserves punishment beyond the amounts from the general and special damages.
How Much Does It Cost to File a Medical Malpractice Lawsuit?
A medical mistake, such as a failure to diagnose or properly treat a medical condition, can lead to serious expenses for patients. Not only do patients endure medical bills that arise from complications, but they may also lose their ability to work for living wages. This can lead to serious financial straits. Many people believe they cannot afford to bring medical malpractice claims to court, but this is an erroneous assumption. The civil justice system exists to help all victims of negligence find financial recourse for their injuries, pain, and suffering. Learn what it costs to file a medical malpractice lawsuit.
The Contingency-Fee Basis
The first important thing to know about medical malpractice cases regards an attorney’s fee structure. Most medical malpractice attorneys, including the Nassau County medical malpractice lawyers at Rosenberg & Gluck, LLP, use a contingency-fee structure for medical malpractice lawsuits. Under this concept, a plaintiff owes no legal fees unless an attorney wins a settlement or court judgment on his or her behalf.
Here’s how the process works: first, a patient who suspects medical malpractice makes an appointment with a personal injury attorney. This first meeting is a free initial consultation and helps the victim understand his or her legal options. In the initial consultation, an attorney will review the facts of the case and determine if a viable claim for medical malpractice exists, based on the information available. If an attorney thinks that a provider committed professional negligence based on the law governing these types of cases in New York, then the attorney will agree to take the case on a contingency-fee-basis.
When an attorney offers services on a contingency-fee-basis, the plaintiff owes nothing while a case is still pending. If a patient receives nothing from a lawsuit, then he or she owes nothing. If an attorney secures a settlement or court judgment on a patient’s behalf, then the attorney will request payment of attorney’s fees from the claim award.
The contingency-fee-basis works to protect both patients and attorneys during the claims process. On the one hand, it allows attorneys to be selective about the types of cases they accept, which helps avoid the court system from filling up with frivolous lawsuits. This system also serves to protect patients from attorneys who would try to pursue cases that might not be viable and demand payment.
Costs Associated with Medical Malpractice Claims
Regarding claims themselves, medical malpractice can be costly to pursue. One of the main reasons for this is the need for expert testimony. Medical malpractice claims are unique in that they require depositions and insight from trained physicians. It’s common for physicians to charge hundreds of dollars an hour to review documents and provide testimony during pretrial motions and for a lawyer’s certificate of merit. Other costs associated with professional negligence claims involve court costs and any expenses necessary to gather evidence that bolsters a claim.
Generally, medical malpractice cases are more expensive when they go to trial. This is because they last longer, and attorneys generally charge an hourly fee. Additionally, the courts charge for use of the courtroom, the judge’s time, and other expenses. For this reason, an attorney will try to settle the matter out of court before a trial becomes necessary.
Medical malpractice claims may be costlier, but, if a medical professional has been negligent, causing you harm, you could be protecting others from similar harm. Victims can gain financial compensation for their material and immaterial losses, such as medical bills, lost wages, loss of life quality, and physical pain and suffering. If you’ve been the victim of medical malpractice, consult a qualified medical malpractice attorney in Nassau County.
Who Can Be Sued for Medical Malpractice?
When discussing the idea of medical malpractice, most people assume that physicians are ultimately responsible for any negligence that occurs throughout the course of a patient’s care. While doctors are generally in charge of a patient’s care, they are not the only ones who may be liable for any damages a patient suffers. For example, a hospital, nurse, healthcare facility, pharmacist, or pharmaceutical company may also be at fault for a patient’s injuries. Learn who might be liable in a medical malpractice claim when you speak with one of our Long Island medical malpractice lawyers.
Generally, a hospital is a public or private entity that can be responsible for a doctor or any other health care provider’s actions. A hospital can be directly liable for the negligence it causes, but it can also be vicariously liable for the actions of its employees.
A hospital employs many kinds of employees, from physicians to nurses and to pharmacists and technicians. When hiring people for these positions, a hospital has a responsibility to make inquiries and check into an applicant’s education, certification, and relevant training experience. If a hospital fails to do so and a provider’s actions lead to harm, the hospital may be responsible under the idea of negligent hiring.
Additionally, hospitals are also required to ensure that facilities always have adequate coverage to protect patients. Hospitals may be liable for any injuries that result from a nursing shortage, for example.
Last, a hospital may be responsible when a nurse or other technician fails to follow a physician’s orders.
What Is Vicarious Liability?
Often, the hospital is responsible for an employee’s actions under a legal doctrine known and “respondeat superior.” This Latin phrase means “let the master answer” and holds that a hospital can be liable for the actions of its agents, such as its employees if he or she acted within the scope of his or her employment when the action occurred. This doctrine provides an important form of recourse to victims of medical malpractice because it helps ensure that a financially responsible party (i.e. a large corporation) can adequately compensate a plaintiff for his or her material and immaterial losses.
In some cases, such as when a medication causes dangerous side effects, a pharmaceutical company can be to blame for a victim’s harms and losses. For example, a pharmaceutical company may be liable for any harm that results from taking a medication when that company failed to warn physicians of any side effects or possible dangers.
Cases involving pharmaceutical companies are unique because their primary duty is to physicians. As a manufacturer of drugs, it is responsible for informing providers of all the risks inherent in taking a medication, including any possible interactions with other drugs. When a medication causes injury in a patient, it might not be because of provider or pharmacist negligence, but because the manufacturer failed to warn of the risks.
These types of medical malpractice cases are generally mass tort or class action lawsuits. In other words, they affect a large population and patients join a collective lawsuit that seeks to compensate many victims of negligence at once. The amount of damages will still depend on a victim’s unique circumstances.
Medical malpractice cases may arise from medication errors, surgical errors, failure to diagnose, or myriad other reasons. One of the most important aspects of litigating a case involving professional negligence is determining the party responsible for a patient’s injuries. A Nassau County medical malpractice lawyer helps by identifying the best form of financial recourse available to victims and holding providers accountable for their actions.
How to File a Medical Malpractice Claim in New York
People who have suffered from medical malpractice on the part of a doctor, hospital, or other medical professionals can take steps to protect their rights to compensation under New York law. Knowing the basic laws and procedures that govern these types of claims empowers individuals to make more informed choices involving their own claims. Anyone who believes a health care provider committed negligence should take the following steps to protect the viability of a potential medical malpractice claim.
Contact an Attorney as Soon as Possible
A DIY approach has become the norm today for many different procedures, but the law should not be one of them. It would be difficult, if not virtually impossible, to handle a medical malpractice or professional negligence claim on one’s own. Retaining the services of a Nassau County medical malpractice attorney soon after the occurrence of suspected negligence has several notable benefits:
- An attorney knows the rules and regulations that apply to filing these types of claims. In New York, an attorney must file a certificate of merit and observe a statute of limitations to establish the viability of a medical malpractice claim. Failure to observe these procedures could lead to a dismissal.
- Depending on the jurisdiction, a victim of medical malpractice must observe certain other pre-trial motions, particularly when a claim involves a government entity. Failure to observe the basic procedural elements of a case could cause a judge to dismiss the case, even if medical malpractice did occur.
- Attorneys with specific experience with medical malpractice spend years developing professional contacts necessary to pursuing a medical malpractice claim. These contacts, which usually include physicians in a variety of specialties, can play an essential role in establishing the elements of a medical malpractice claim.
Obtain Medical Records
Retaining the services of a Nassau County medical malpractice attorney is an essential step in protecting any victim’s right to compensation following medical malpractice. However, to properly assist the claimant, an attorney must have access to relevant medical records. These records contain valuable evidence that could make or break a medical malpractice claim.
Documents that pertain to a person’s health care fall under the purview of strict privacy laws. As such, they can be timely to obtain. Patients who want access to their medical records must make the request to the appropriate department, sign a release, and wait for them to arrive at the destination. Generally, it’s advantageous for a victim to request a copy of his or her own medical records as soon as he or she suspects medical malpractice. Bringing a copy of these medical records to an attorney’s office can speed up filing a claim. It allows an attorney to analyze the situation, see if a viable claim for professional negligence exists, and begin the process of filing a claim and certificate of merit with the appropriate court system.
Notify the Appropriate Party
Finally, it can be advantageous for patients seeking damages for medical malpractice to contact the would-be defendant directly and make notice of a pending claim. In some instances, this will encourage the provider to act independently with his or her insurance company to settle the matter out of court, without the need for a formal claim filing process. This generally allows victims of medical negligence to gain compensation for their injuries sooner. At the same time, a Nassau County medical malpractice lawyer will negotiate with the defendant’s insurance company to gain maximum compensation for a victim’s material and immaterial losses.
If notifying the defendant proves unfruitful, then a plaintiff’s attorney can begin the process of filing a formal professional negligence claim in court. An attorney will draft a certificate of merit, file any pretrial motions, gather expert testimony, and follow other important legal procedures that help identify the presence of medical malpractice.
Proving Fault in Medical Malpractice Cases
Nassau County personal injury lawyers must prove four factors in a medical malpractice claim:
- That a doctor-patient relationship existed. You can show a relationship with proof that you hired him or her and he or she accepted your case, actively seeing you and administering treatment.
- That the doctor was negligent. Proving it involves showing that he or she made a decision that a doctor with similar training would not have made in the same situation. If a doctor was not reasonably careful, he or she could have been acting negligently.
- That the doctor’s negligence caused your injury. His or her unreasonable actions must have caused your injury.
- That the injury led to specific physical or emotional damages.
One of the most important aspects of a medical malpractice claim is determining if negligence occurred. Medical negligence can occur in a variety of forms and differs from other kinds of personal injury.
One way to look at medical negligence is as an action or failure to act that deviates from an established standard of medical care. Negligence, as a general concept, refers to an instance in which a person fails to act in a manner that another reasonable person would. Regarding medical malpractice, a health care provider fails to act in a manner that another similarly trained professional would, given the same or similar circumstances.
Health care providers have a legal duty to provide treatment that’s in line with a “medical standard of care.” This varies by specialist and refers to a level and type of care a patient can expect from a competent professional.
In sum, medical negligence occurs when a health care professional, such as a dentist, pharmacist, doctor, or hospital, performs his or her job duties in such a way that deviates from a standard that a similarly trained professional would find unacceptable. This means that a doctor fails in his or her duty to a patient.
A patient can only pursue a medical malpractice claim when medical negligence leads to harm. A provider can deviate from a standard of care, but a viable malpractice claim only exists when a plaintiff can show how the negligence led to a worse health outcome.
Types of Medical Malpractice
Medical malpractice occurs when a health care provider, such as a physician, fails to act in a manner that another reasonably skilled physician would in the same or similar circumstances. This action or inaction has a legal name: negligence. When professional negligence leads to patients’ suffering or poor health outcome, they may be able to collect damages for the material and immaterial losses that result. Medical malpractice claims play an important role in our civil justice system by keeping health care providers accountable and giving victims of negligence an important form of recourse.
Many different types of medical malpractice exist. Knowing the different occurrences of them can help patients ascertain if they have viable grounds for potential professional negligence claims. Some of the most common forms of medical malpractice include:
- Misdiagnosis or failure to diagnose
- Negligence during pregnancy and childbirth
- Prescription errors
- Negligence in surgery (i.e. anesthesia and surgical errors)
Any patient who believes he or she has been a victim of medical malpractice should contact a Nassau County medical malpractice attorney as soon as possible to discuss his or her legal options. The attorneys at Rosenberg & Gluck, LLP have years of experience in pursuing cases just like yours.
How a Nassau County Medical Malpractice Lawyer Can Help
Medical malpractice involves complex matters of state law. As such, they require an attorney with specific experience with professional negligence practice and how to appropriately handle these types of cases. Medical malpractice may involve high damages arising from expensive medical bills and general damages such as physical pain, suffering, emotional anguish, and loss in life quality. If you’ve been a victim of medical malpractice, you need an attorney who is familiar with the process of filing these types of claims.
Why Choose a Medical Malpractice Attorney?
Not all attorneys have the same experience or knowledge base. Some personal injury attorneys work extensively within the scope of medical malpractice; others do not. Victims seeking to recover damages that result from a provider’s negligence should elicit help from attorneys who can accurately represent their rights and demand fair compensation for their injuries, pain, and suffering.
Hiring an attorney for a medical malpractice case is a little like getting a medical procedure itself. If you needed a hip replacement, you likely wouldn’t ask your primary care provider to do the job. You would find the best orthopedic surgeon possible and ensure hip replacements are within his or her scope of practice. Hiring a personal injury attorney without extensive experience with medical malpractice is the same thing – you run the risk of a negative outcome.
Generally, hiring a medical malpractice attorney helps for a few reasons:
- Matters involving professional negligence involve complex health subjects and require a general knowledge of the healthcare system and medicine. Your personal injury attorney should know how to establish the elements of a viable medical malpractice claim across several medical specialties.
- An attorney who has demonstrated experience with medical malpractice laws is more likely to command respect and proper attention from a defendant’s counsel or medical malpractice insurance agency.
- One of the most important aspects of a medical malpractice claim is gathering expert testimony from similarly trained medical professionals. Medical malpractice attorneys spend years developing professional contacts that help clients establish how a provider deviated from an established standard of care and committed negligence.
The Nassau County medical malpractice attorneys at Rosenberg & Gluck, LLP have worked broadly within the scope of medical malpractice, handling many different types of claims. As such, we’re familiar with the laws and necessary pre-trial motions that dictate filing medical malpractice cases within New York state.
Contact a Nassau County Medical Malpractice Lawyer
Doctors are trusted with the responsibility of helping people heal and recover from injuries and ailments. If a doctor harms you because of an unreasonable or neglectful decision, you deserve compensation. Contact Rosenberg & Gluck, LLP for help.