How to Establish If You Have a Medical Malpractice Case
We must be able to prove that the medical professional who treated you departed from accepted standards of care and in doing so committed negligence.
These four elements must be present in your case:
- The patient had an established patient-doctor relationship with the medical professional who agreed to provide treatment.
- The medical professional or facility departed from accepted standards of care by acting negligently, carelessly, or incompetently.
- This negligence, carelessness, or incompetence brought harm to the patient.
- The patient suffered damages or losses due to the harm they endured.
If all four of these are present in your medical malpractice case, you can pursue a medical malpractice action, and we can help you.
Damages in Medical Malpractice Cases
Our personal injury attorneys can evaluate your case to determine what economic and non-economic damages you could recover in your case. Depending on the evidence, the extent of the injuries you suffered, and the general outlook of your health, you could be awarded compensation for:
- All medical care and treatment (past, present, future)
- Hospital stays
- Rehabilitative care
- Lost wages, benefits
- Reduced earning potential
- Disability and disfigurement
- Pain and suffering
- Loss of life enjoyment
- Loss of companionship
Caps on Medical Malpractice Damages
Each state has unique laws pertaining to damages in medical malpractice cases, so you should speak with a qualified Long Island medical malpractice attorney at Rosenberg & Gluck, L.L.P., for more information about New York’s medical malpractice laws. New York currently does not have restrictions on how much compensation a patient can recover in a malpractice suit.
Other states, however, have laws that cap or limit the amount of compensation plaintiffs may secure in medical malpractice lawsuits. Some state caps pertain to the total amount of compensation from all channels.
For example, there is a $250,000 cap on non-economic damages in California medical malpractice lawsuits. Other states place limits on certain types of compensation. For example, a state may set a $200,000 limit on compensation for pain and suffering, or many states cap only “general damages” for things like loss of enjoyment of life and psychological trauma.
The New York Medical Indemnity Fund
New York does have the New York Medical Indemnity Fund (MIF), which was established in 2011 to provide funds for future health care costs associated with birth-related neurological injuries caused by medical malpractice. When a plaintiff qualifies for the MIF, future medical expenses are paid out of the MIF rather than by the defendant.
Procedural Rules of Law Apply to NY Medical Malpractice Cases
In a New York medical malpractice case, both the attorney and the person bringing forth the lawsuit must follow the procedural rules of law. The plaintiff is required to file the following three statements to the court:
- The New York attorney has conferred with, at a minimum, one licensed medical authority.
- The attorney has reason to believe the medical expert is knowledgeable regarding the issues surrounding the claim.
- The attorney believes the medical malpractice claim is being filed on reasonable grounds due to the expert advice of the medical authority and all relevant evidence.
What is the Statute of Limitations for Filing Medical Malpractice Lawsuits in New York?
Like any other lawsuit, a medical malpractice case must meet the state’s statute of limitations or time limit for filing legal actions. In New York, the statute of limitations for medical malpractice lawsuits is generally two years and six months, per CPLR §214-A.
Typically, the statute begins counting on the date the healthcare professional committed the malpractice. However, sometimes the effects of medical malpractice take time to manifest and do not become apparent for quite some time. New York allows for limited circumstances when the statute begins on the “date of discovery,” or the date the victim noticed the effects of the medical malpractice.
Further, keep in mind that wrongful death claims, even if arising out of a medical malpractice event, carry a two year statute of limitations. Additionally, there may be some circumstances, such as when dealing with State or municipal healthcare facilities, when you may have as little as 90 days to act.
Various Circumstances Can Affect the Medical Malpractice Filing Deadline
With regard to a cancer misdiagnosis, the statute of limitations begins to run when the patient knew or should have known of his or her cancer diagnosis. Also, medical malpractice cases involving a foreign object left inside a patient’s body either has one year from the date the foreign object was discovered or facts were available that could have led to its discovery, or two years and six months from the date the malpractice occurred, whichever is longer.
Other factors can affect these time limits, including whether the malpractice occurs during a continuing course of treatment for the condition. Additionally, the time limit to bring a case is more limited when dealing with a municipal medical provider (such as a county hospital or EMT) or the state.
To learn more about the limitations that could potentially impact your case, speak with our knowledgeable medical malpractice attorney serving Long Island. A medical malpractice lawyer near you can help and guide you through every step of the legal process.
Types of Medical Malpractice That Lead to Claims or Lawsuits
Our personal injury lawyers on Long Island have handled many medical negligence claims. It is one of the practice areas we have extensive experience helping victims with from filing the claim, dealing with insurance companies, to going to trial when needed.
Common medical errors that harm patients and lead to medical malpractice lawsuits include, but are not limited to:
Emergency Room Mistakes
The emergency room is a chaotic place, and doctors must react very quickly to incoming patients. Even though the emergency room can be fast-paced, the doctors, nurses, and other staff working in the emergency room must still meet the appropriate standard of care for the treatment they render.
Failure to Diagnose
Doctors are supposed to assess a patient’s symptoms and then use a process of elimination to reach an accurate diagnosis. If a doctor fails to appropriately evaluate or consider a patient’s symptoms or fails to perform a required test, they may be negligent for failing to diagnose the patient’s condition.
This can be particularly dangerous if there is a failure to diagnose cancer, brain damage, or other serious conditions that can lead to more severe issues or even a wrongful death.
Sometimes a doctor delivers a diagnosis too late, and a patient’s condition worsens or develops into a new complication. Doctors must provide timely diagnosis or they risk causing harm to patients. A delayed diagnosis can cause a patient’s condition to deteriorate to dangerous levels, cause permanent damage, or open the patient up to additional medical complications.
If a doctor is unable to reach a confident diagnosis in a timely manner, he or she needs to reach out to other medical professionals for their assistance to limit harm to patients.
One of the most common causes of medical malpractice lawsuits is a misdiagnosis or any instance of a doctor providing a patient with a flawed or incorrect diagnosis. Misdiagnosis is dangerous because a patient may undergo completely unnecessary surgeries, procedures, or treatments that often cause more harm than good.
Not only is the inaccurate treatment often ineffective, but the patient’s actual issue likely remains unaddressed for longer than necessary.
Medications can curb the unpleasant symptoms of many medical conditions and help manage pain, but medications are also incredibly dangerous in some situations. Doctors, pharmacists, and pharmaceutical manufacturers must ensure their products perform as they intended and that patients receive appropriate prescriptions in the correct dosages.
The operating room is often full of tension, especially during complicated or dangerous procedures. Surgeons have extensive training to perform their duties, and it is essential for them to arrive at every surgery prepared.
Surgical errors can refer to cases where surgeons have left medical devices such as forceps and clamps inside of patients, failed to perform a procedure correctly, operated on the wrong side of the body or body part, or performed the wrong procedure on the patient.
Most surgeries and many medical procedures require anesthesia. Anesthetics work in different degrees, from local anesthesia that only affects a small area of the body such as a hand or the mouth to regional anesthesia that can render a whole arm or a large portion of the body numb. In addition, general anesthesia renders a patient completely unconscious.
Anesthesia errors are particularly dangerous for many reasons. If a patient has an anesthesia allergy or sensitivity to a drug a doctor used in a procedure, it can have negative or even fatal consequences. Anesthesiologists must also monitor patients’ vital signs continually during general anesthesia.
Even small fluctuations in vital signs can indicate serious problems. These professionals are also responsible for ensuring patients receive the correct dosages of their anesthetics.
Some people have allergies to medication. Due to potential allergies, there are alternatives to virtually every medication. Doctors and all other healthcare professionals need to ensure their patients are not allergic to the drugs they prescribe. Additionally, doctors must ensure a patient’s medications do not interfere with the patient’s other medical conditions and concerns.
For example, the usual prescription for a patient’s medical problem may interact with the blood pressure medication the patient already takes, making an alternative treatment necessary. Doctors must account for a patient’s full medical history, other medications, and drug sensitivities when prescribing medications.
An “incorrect procedure” is a blanket term that can apply to any situation in which a doctor fails to take the acceptable action for the circumstances or performs an action that is inappropriate for the circumstances.
Incidents that fall under the label of “incorrect procedures” include instances of gross negligence, such as reading an X-ray backward and amputating the wrong limb, or surgical errors, such as removing a patient’s appendix right away after the patient complained of stomach pain but without confirming appendicitis was the issue.
Medical malpractice claims are different from other civil actions in that a plaintiff must provide the Court with a Certificate of Merit advising they have consulted with a physician who finds their claim to have merit.
Sometimes a patient may believe a doctor has made an error or did not do something correctly and therefore committed malpractice. Others simply assume that because they are in pain or had a bad outcome following treatment, their doctors must have been negligent in some way. Medical experts are required in these cases to support the claims before you can move forward with an action.
An experienced medical malpractice attorney will be able to assist you in proving your case has merit and help protect your interests. Call a Long Island medical malpractice lawyer today to arrange an appointment.
Rosenberg & Gluck, L.L.P. | Medical Malpractice Lawyers in Long Island, NY
Our medical malpractice lawyers on Long Island, NY, help people who believe they were hurt during surgery or while receiving medical care. If you need legal assistance to evaluate your injury, you will find the medical malpractice lawyers at Rosenberg & Gluck, L.L.P., are some of the most experienced in Long Island, as they have a wealth of experience in New York’s court system.
Call for a Free Consultation
Our Long Island personal injury law firm offers a no-cost, no-obligation consultation to discuss the circumstances surrounding your medical malpractice claim. Call today to speak to a Long Island medical malpractice lawyer or contact us online to arrange an appointment. If your injuries prevent you from traveling, home and hospital visits are available.