Medical malpractice FAQ
What every patient should know.
Did you know...
Medical malpractice cases generally are among the most expensive and difficult personal injury cases to win. The attorney must prove the patient received medical treatment that did not meet a minimum average standard of care and that the patient suffered significant damages as a result. A bad medical outcome is not enough reason to sue. A patient can sue successfully only if a negligent act causes the bad outcome. In most cases, under New York state law, adults have two and a half years after the mistake happened to file a claim. The exceptions:
- If you file a claim against a municipal hospital or the state, you have even less time to sue.
- If the doctor continued to treat you for the same condition after the incident, you will have more time. But, to get an extension, the treatment must be continuous and it must be for the same medical condition in your claim.
- If a foreign object is inadvertently left in your body, you may get an extension if you discover the object more than two and a half years after the surgery.
- In cases involving children, the statute of limitations extends to a maximum 10 years.
Unlike other personal injury cases, medical malpractice suits typically go to trial. So, if a case is settled out of court, it usually happens very close to the trial date. Medical malpractice occurs when a doctor, nurse or other trained health care provider is negligent or fails to provide treatment within the standard of care for a reasonable practitioner in the field. Under the law, the doctor or nurse does not have to provide the absolute best care possible, only the same level of care that an average practitioner would be expected to provide. In order to bring a medical malpractice claim in New York State, an expert physician must review the case and determine that it has merit.
In March 2000, the National Institute of Medicine released a report that estimated that as many as 98,000 patients die each year as a result of medical mistakes, more than those who die annually in automobile accidents or from breast cancer or AIDS. In New York state, more than 90 percent of medical malpractice cases that go to trial are resolved by the jury in favor of the doctor or hospital. Only 7 percent of New York state’s licensed doctors are responsible for 68 percent of all medical malpractice payouts, according to Public Citizen, a national non-profit public interest organization.
What do I do if I think I am a victim of medical malpractice?
First, and most important, attend to your immediate medical needs but consult an attorney as soon as possible. When it comes to medical malpractice, there is a lot at stake. Health care providers and their insurance companies have the resources to support lengthy litigation as well as access to medical experts who will testify on their behalf. And, despite the common perception that juries always side with patients, health care providers win a large majority of the cases that go to court.
So, look for a law firm with the resources to see your case through to trial and with expertise in your type of case. Firms with professional nurse consultants or other medical consultants on staff are usually very experienced with medical malpractice claims.
What will it cost to hire an attorney?
As with all personal injury cases, medical malpractice attorneys should not charge any fees until your case is resolved. You may be asked to cover some initial expenses, such as the cost of collecting medical records. Taking a medical malpractice case to trial can be expensive because of the cost of hiring expert witnesses. Most medical malpractice firms will advance expenses for expert witnesses and other trial costs that the client cannot afford, then deduct those from the recovery. Win or lose, the client is responsible for those expenses. An attorney who tells you otherwise is not complying with the law.
