What do you need to know before filing a lawsuit for medical
malpractice in New York State?
Medical malpractice can result in scary consequences, but you don’t have to suffer alone. Here’s everything you need to know to reach legal compensation in the Empire State.
No one wants to be the victim of medical malpractice. Depending on the nature of the mistake, it could leave you with long-term suffering and medical problems. While doctors, nurses and other medical providers are skilled and highly trained, they are human, and mistakes happen. Even the best, most highly regarded doctors occasionally have a lapse in judgment or a moment of indecision.
New York State definition of medical malpractice
New York State law defines medical malpractice as a deviation or departure from accepted medical practice by a healthcare professional that results in injury or harm to the patient. This deviation from the standard of care can occur in various ways, such as misdiagnosis, surgical errors, medication errors, failure to diagnose a condition, or improper treatment.
To establish a medical malpractice claim in New York, certain elements must typically be proven:
- Doctor-patient relationship: There must be a doctor-patient relationship, meaning the healthcare provider owed a duty of care to the patient. A hospital or medical facility could also be a defendant in a medical malpractice claim; it’s not limited to physicians. Any person or entity that provides medical treatment could be liable for malpractice.
- Breach of standard of care: The plaintiff (victim) must prove that the healthcare provider deviated from the accepted standard of medical care. This is often established through expert testimony, where another qualified medical professional explains the standard of care in that situation. The standard of care is based on reasonable measures for the resources, training, and common practice in the area where the doctor practices.
- Causation: The deviation from the standard of care must be directly linked to the patient's injury. In other words, the malpractice must have caused harm or worsened the patient's condition.
- Damages: The patient must have suffered financial damages from the malpractice. This includes costs related to physical pain, emotional distress, additional medical expenses, lost income, or disability.
Medical malpractice vs. medical negligence
The difference between these two terms might seem minimal, but they are handled differently under the law.
Medical negligence is when a healthcare provider deviates from the accepted medical standard of care. This could be malpractice but it is not always malpractice.
Medical malpractice is when that deviation causes an injury or harm to the patient.
In other words, a physician might be negligent if their treatment is substandard to what is normal and reasonable for that particular area of medical practice. They are negligent in that instance, but this does not rise to the level of malpractice unless the patient actually suffers an injury as a result.
To make a medical malpractice claim, the patient must prove that the substandard treatment caused their injury.
Types of New York medical malpractice
There is a wide variety of types of claims for medical malpractice. The most common include:
- misdiagnosis
- surgical errors
- premature discharge
- improper medication administration or dosing
- failure to consider a patient’s medical history or symptoms
Any provider can be a defendant in a medical malpractice claim. The liable party could be a physician. Hospitals can be sued for the actions of their employees, including nurses, lab techs, or any other staffer. A doctor could be sued independently or as part of the hospital staff.
How to prove medical malpractice
Medical malpractice can be complex. One reason is that the stakes are high; another is that practicing medicine doesn’t always have only one solution or method of treatment. There’s a reason why lots of people will seek a second opinion before embarking on a course of treatment or accepting a diagnosis. Different doctors will approach a case differently, and there might not be agreement on what is “standard.”
Several factors will be used in a claim to prove that medical malpractice exists. These include:
- Examining the patient’s medical records, test results, and other evidence of medical treatment.
- Expert testimony from relevant medical professionals.
- Previous malpractice claims against the provider.
- Other relevant evidence regarding the timeline of events, medical conditions, and any involved parties.
Damage awards for New York medical malpractice lawsuits
A New York medical malpractice lawsuit can result in both economic and non-economic damages for the plaintiff. There are no caps on damages in New York medical malpractice claims.
Economic damages include medical treatment, lost wages, and other actual costs related to the injury. Non-economic damages include pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium, and other damages based on intangible or subjective factors.
Statutes of limitations on New York medical malpractice lawsuits
The statute of limitations is the amount of time in which a plaintiff may file a claim. If you don’t file within the specified time, the court will likely refuse to hear your case.
In New York, you may file a medical malpractice lawsuit within two years and six months of the date of the injury. If the malpractice involves a foreign object in the body, the lawsuit can begin within one year of discovery. For example, a surgeon leaves a sponge in the person’s body—they might not know immediately until there are some related symptoms. That’s why the law provides ample time to file a lawsuit after the patient reasonably discovers the problem.
If the patient is a minor, they have two and a half years from their 18th birthday in which to file a lawsuit. In other words, if a child under age 18 was the victim of medical malpractice, they may file a lawsuit until age 20 and six months.
Failure to inform
Aside from lawsuits for actual injury from medical treatment, there’s also a cause of action for failure to inform of the risks of a treatment or procedure.
A patient is expected to give informed consent for any medical procedure or treatment before beginning. If the doctor does not advise you of the risks so you can provide informed consent, and a known risk of the procedure occurs, the patient might be able to file a lawsuit for malpractice.
To make a successful claim for malpractice in this instance, you have to prove that you would not have consented to the procedure if you’d known the risks. For example, an obstetrician might recommend an amniocentesis for a pregnant woman if they suspect that there might be a chromosomal abnormality with the baby. Sometimes this is recommended only because of the woman’s age, genetic history, or other medical conditions. This prenatal exam takes fluid from around the baby in the uterus. The fluid is tested for the presence of certain health conditions like Down’s Syndrome and other chromosomal abnormalities. There is also a test called Chorionic Villus Sampling (CVS) that carries a 0.5% to 1.0% chance of miscarriage, which is slightly higher than the risk for an amnio.
The doctor has a responsibility to warn the pregnant mother that these tests involve some risk of miscarriage, in addition to risks like infection, preterm labor, fetal deformities, and others. The pregnant woman might choose to forego the tests because of the risks—and if the doctor does not inform her, she cannot make that decision.
If the doctor does not advise her of the risk and the procedure does cause a miscarriage or other complication, she might be able to file a lawsuit for failure to inform. On the other hand, if she chooses to forego the tests and the baby is born with a condition that would have been detected by the test, the doctor is not liable if he recommended the test and the mother refused.
What to do if you believe you’re the victim of New York medical malpractice
First, gather whatever medical records you have that are relevant to your claim. If you have an online patient portal, download or print your medical history and records. If not, you can contact the medical provider and request copies.
Next, get a second opinion. Get an exam by a doctor who is not affiliated with the provider who you believe to be negligent. That means find a different medical practice, hospital, or doctor who does not function in partnership with the one you believe caused your injury or condition.
Third, consult an experienced New York medical malpractice attorney. Your lawyer will guide you through the process, understands how the courts work, and will provide you the advice you need to reach compensation for your injury.
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