Medical Malpractice Lawyer

In all cases, a medical provider is bound by the accepted industry standards of their profession to ensure their patients’ safety.

Not acting within those boundaries can have serious consequences, including:

• The potential need for more medical care than was necessary – If a physician misdiagnoses an illness, or makes a critical emergency room error, the patient may need further medical treatment or care. This can put significant financial strain on the family.
• Life disruption – A critical medical error can disrupt a patient’s life, keeping them away from work and other responsibilities.
• Potential disability – A critical medical mistake or the failure to treat in a timely way can result in disability, limited mobility, paralysis, or brain injuries and cognitive impairment.
• Possible fatality – Whether it is a delayed diagnosis, a surgical error, or a misprescribed medication, some medical errors result in the death of a patient.

Not all medical mistakes are considered medical malpractice. In a malpractice claim, the behavior of the healthcare provider will be considered against the “accepted standard of care” in the industry, given that professional’s training and experience.

Depending on the healthcare provider and the patient, the standard of care may vary considerably. A physician’s assistant cannot be weighed against the same standard as a physician. A family practice doctor cannot be weighed against the same standard as a heart surgeon. Because of this, the provider’s actions must be compared to what another reasonable provider, given the same medical status, training, and experience, would do in the same circumstances. 

In New York, there is also a locality rule which states that a physician must use a “reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices.” Consequently, a doctor is only measured against other doctors in that geographic locality. This rule was created to protect doctors in smaller towns from the same standards of care that doctors in larger cities are held to.

The Burden of Proof in a Medical Negligence Claim in New York

When someone brings a medical malpractice claim against a medical provider, the burden of proof rests on the injured party.

There are two elements that the injured party must prove. They are:

1. That the healthcare provider did not offer the standard of skill, care, and behavior expected of a reasonable healthcare provider, given the same education, experience, and status of their profession, acting in the same circumstances.
2. That the failure to offer the accepted standard of care was the proximate cause of the injury or fatality.

Although this may sound simple, these elements are not always clear-cut. Malpractice insurance companies have many defenses, in most cases, to blame the patient. Having the guidance and assistance of an experienced medical malpractice lawyer in New York ensures your greatest success when bringing a claim against a healthcare provider and their associated malpractice insurance company.

What Happens if You Are Partially to Blame?

In some cases, the patient may be partially to blame for their injuries, oftentimes for not following the doctor’s explicit orders. In this case, the law recognizes comparative fault. Damages will be reduced proportionately to the amount of fault of the patient. So even if you are partially at fault for your injuries, you may still be able to recover compensation for your injuries.

There are time limits you must be aware of concerning medical malpractice claims. You must file a medical malpractice claim within 2.5 years or 30 months of the date of the mistake. For children under 18, the statute of limitations begins once that individual turns 18 years of age. 

There are exceptions to this in New York called the discovery rule. This rule applies to two specific situations: foreign objects that may have been left in the body during a surgery and a cancer diagnosis.

• Foreign object – You have one year from the date of the discovery of the object or reasonably should have known about it.
• Cancer diagnosis – You have 2.5 years or 30 months to file a claim from the date of discovering the mistake, but not more than seven years after the mistake was made, or after a continuous course of treatment has ended.

It is important to get the guidance of an experienced medical malpractice lawyer as soon as possible because of these time constraints.

Medical Malpractice and Wrongful Death

In some cases, medical malpractice can lead to a fatality. In this case, family members of the deceased may be able to file a wrongful death claim against the healthcare provider or organization. Wrongful death claims, while they cannot make up for the death of a loved one, can help ease the financial burden that the family may be faced with after losing their family member. 

Close family members such as the spouse, children, parent, grandparent or personal representative of the estate may file for wrongful death compensation for:

• Funeral, burial, or cremation costs
• Medical expenses incurred by the deceased
• Lost wages
• Loss of support
• Loss of parental care
• Loss of inheritance that would have been available had the family member lived
• And other compensation