How a New York Medical Malpractice Lawyer Can Help Maximize Your Recovery, or Defend Medical Personnel and Physicians Against Unworthy Claims
Determining if I have an Actionable Medical Malpractice Case under New York Law?
Unexpected death, complication and surgical error define the medical profession as potentially certainties when receiving treatment in the medical industry.
Tragically, during the 2020 pandemic many elderly patients needlessly died as a result of substandard care in nursing homes. People often wonder about just how much victims of medical malpractice and their loved ones alike can recover for medical professional’s lapses of judgment. Although it is an unpopular health care statistic, medical errors exist in the medical profession, notwithstanding strict rules monitoring and regulating medical professionals through the American Medical Association and medical boards.
Knowing the ever-changing tide of medical malpractice law in New York City can help compensate the victim’s family members, improve the doctor-patient relationship and ensure adequate checks-and-balances are in place on the medical profession.
To learn more about the elements that must be proven in the State of New York in an ordinary medical malpractice injury claim as well as the common ways for these cases to be disproven and dismissed, it is worth it to spend a few moments by reading further.
What are the Elements of Successful Medical Malpractice Lawsuits under New York Law In Queens, on Long Island?
According to the leading trial law firm Gilman Bedigan, LLC’s blog, New York malpractice suits can be commenced against not only medical doctors and surgeons, but also against those in the following categories of healthcare providers:
- Medical technicians
- Physical therapists
One theory of understanding whether a medical malpractice lawsuit can go forward relates to the principle known as the “loss of chance” theory.
In other words, a death occurred while in the treatment of a medical care provider, doctor or pharmacist, and that –had the patient been informed of the risks associated with a particular surgery, or was given a proper diagnosis—the patient would have more than likely survived.
As a matter of principle, as reported in Medical Economics, a patient can have a valid claim only if it is established that failing to diagnose (misdiagnosing) leads to a 50% or greater survival chance, then there is recovery against the doctor or hospital.
Fortunately, the trend in New York of recognizing a victim and the survivors’ right to recover money damages for a doctor’s failure to diagnose is good law in New York, as it is in two-thirds of other states.
As stated in Medical Economics, compensating the victim even if the chances of survival on account of the lost chance was less than 50%—to allow a victim, or victim’s surviving loved ones to hold the doctor and hospital liable for a costly medical error.
The elements of a medical malpractice negligence case in New York have nuances to distinguish between “medical negligence” and “medical malpractice.” As distinguished by GoodRxHealth.com, the former term “negligence” refers to a doctor “accidentally” rendering services that lead to an injury and/or death of the patient. Whereas the latter refers to a doctor knowing of the danger of a particular surgery and deliberately or recklessly advising a patient, or misdiagnosing a patient, leading to injury, complication or death.
Medical negligence under New York state law involves these four elements:
- Duty—an obligation owed to other not to cause unreasonable risks of injury.
- Breach of the Standard of Care—a fall below in the standard of care.
- Causation-a causal connection between this breach.
- Damages (economic or non-economic, punitive or compensatory)—expenses for injuries and mental distress.
In other words, “medical negligence” is proven when the victims shows that the doctor’s actions fell below the standard of care, which directly caused the injured patient complications or even death. Typically this is shown when a foreign object enters a patient’s body during surgery such as an instrument.
In contrast, the National Library of Medicine defines malpractice claims allow a jury to judge the doctor’s work by a medical expert witness, and determine whether the doctor “deviated from accepted norms of practice in the medical community and cause[d] an injury to the patient, by act or omission.”
Another issue can be when a doctor’s surgical procedure amounts to an independent cause of action for battery, as mentioned on the Syracuse-based Defrancisco & Falgiatano blog, or “unconsented medical treatment”:
According to the National Library of Medicine, the elements include:
- Disregarding the patient’s wishes.
- Performing one surgery substantially different from the expected surgery.
- Not providing informed consent to perform a certain surgery.
Last, according to the New York State Nursing Office blog, patient abandonment can be brought as a lawsuit independently.
Patient abandonment in New York is defined when the physician’s acts cause “[a]bandoning or neglecting a patient under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care.” N.Y. Educ. Law § 6530(3).
A skilled medical malpractice attorney can zealously advocate for you to determine whether abandonment has indeed occurred and the necessity of the treatment that was not given.
What are the Time Limits and Procedure for Filing a Brooklyn Medical Malpractice Claims?
Once the statute of limitations has run in New York, it is too late to bring a medical malpractice case and there is no alternative way of a victim to pursue justice for their injuries.
According to Nolo.com, New York State prohibits victims of medical malpractice from bringing a lawsuit if they wait more than two and a-half years, or 30 months, from the date of their injury. This rule comes from the New York Civil Practice Law and Rules section 214-a.
Although that is a rule of thumb, there are of course exceptions that a skilled and seasoned medical malpractice attorney would be able to detect and apply in your medical malpractice case.
Some examples include “Lavern’s law” for failure to detect malignant tumors that cause cancer, among other lesser-known exceptions.
The law of statutes of limitations serves to ensure fairness to the side being sued. This serves to prevent claims being brought injuries that are less severe from the time when they first occurred, making it difficult to determine the fairest amount that should be paid for aggravation of an injuries caused by surgical complications or grave illness caused by a failure to diagnose or a misdiagnosis that improved over time.
What are Common Standard of Care Defenses for Medical Personnel and Medical Professionals?
According to the well-respected and trusted Nolo.com, medical malpractice claims can be considered harder to pursue effectively if some, or all, of the following is true:
- The victim’s expert witness testimony (i.e. testifying doctor on behalf of the injured patient) is found to be unreliable or unqualified.
- Damages asked for by the injured party are excessively high, economic or non-economic such as mental distress and suffering, such as “punitive damages” intended to “punish” the medical professional or hospital.
- The victim cannot prove with strong credible evidence of causation between the doctor’s alleged negligent act and the patient’s injuries.
- The victim was partially, whether in part or in full, to blame for the incident
- The owner of the property had warned the victim of the hazard and yet the victim ignored such warnings and injured him or herself.
New York medical malpractice law requires a skilled trial lawyer who with the resources and ability to provide a competent defense or claim based on the side they take.
Legal Options: How Much Can an Injured Victim in Manhattan Expect to Recover for a Medical Malpractice Claim?
Based on the skill and years of experience of the medical malpractice attorney handling a victim’s case, a client can recover greater amounts if the lawyer stays up to date with the everchanging landscape of medical malpractice theories of liability. This includes proposed “caps” on non-economic damages. Non-economic damages refers to general suffering as opposed merely to emergency room costs incurred.
A knowledgeable medical malpractice lawyer grasps changes changing legal tests promulgated by courts to prevent access of such cases to be heard by juries, which often guarantees a client’s chance at recovering multi-million dollar verdicts for particularly cases involving birth injuries, or catastrophic injury resulting in brain damage, cerebral palsy, or loss of muscular function or even patient death.
What is the Importance of Hiring a Skilled Bronx Medical Malpractice Lawyer?
Commonly malpractice injuries take place in many contexts: from everyday health care encounters and follow-up appointments with primary physicians who may fail to conform to the proper standard of care, to less common, although equally serious problems dealing inadequate supervision by nursing staff, in cases involving the elderly.
Many top-rated law firms specialize in these cases, including New York City medical malpractice law firm Wingate Russotti Shapiro Moses & Halperin, LLP, the national personal injury law firm McDonald Worley, P.C., among others in New York City and state’s surrounding areas, offer a free consultation.
For such a New York law firm competent in taking on New York medical malpractice cases, a health care legal specialist will ask you, the client, questions to maximize the value of your case, or minimize liability in exploring your legal options. In any case, it is advisable to keep track of any medical expenses incurred, the order of events and thoughts of why they occurred.
As healthcare professional facing a lawsuit, where one’s professional reputation is often at stake, it is also imperative to disclose any insurance company policy maintained and provide all known information that could be helpful for the personal injury lawyer to evaluate the claim before the court.
Call a Medical Malpractice Personal Injury Law Office Today to Discuss Your Case and Odds of a Obtaining a Favorable Settlement.
Whether you are a victim, medical personnel or physician, having the right medical malpractice attorney on your side can navigate the complexity of statutory damage caps on non-economic damages and negotiating with insurance companies—often leading to the greatest recoveries. The attorney-client relationship forms upon consultation when you consider hiring the attorney, which can include a disclaimer depending on the firm. Failing to be adequately prepared can result in not being compensated for a serious injury with clear liability, such as if the attorney is not particularly qualified in the particular case brought.
Likewise, this can result in verdicts in favor of non-meritorious malpractice claims and in turn can cause a medical practice to be in jeopardy of disciplinary action and loss of goodwill. In any case, Lawsuit.org will help you pinpoint the right medical malpractice personal injury attorney offering a free consultation and the legal representation required to obtain the just result you deserve.