To know whether you have a medical malpractice claim, a lawyer must consider the type of medical treatment that was provided or that a doctor failed to provide. Often, after discussing the facts with you, a medical malpractice attorney will have a general idea of whether your facts may fit broadly within the elements necessary to pursue a claim. Other times, an attorney will need to review medical records and speak with experts to better understand if your situation can meet the elements needed. Additionally, an attorney must examine the type of damages suffered. In fact, in order to proceed with a medical practice case in New York, an attorney is obligated to consult with a medical practitioner and file a certificate of merit which indicates that the case has been reviewed and that there is a basis for the case to proceed.

Not all care that results in a bad outcome for the patient will satisfy the legal elements of medical malpractice needed in order to hold a doctor liable for the harm and injuries suffered. An attorney can help apply the facts of your specific situation to the law and determine whether you may have a medical malpractice claim that can be pursued.

In determining whether the circumstances of your medical care meet the legal standard to bring a lawsuit, New York Law requires your attorney to speak with a medical expert or experts about the care you received. In speaking with a medical expert, your attorney will seek to understand the medicine behind your care to determine whether the care was lacking and if there is a reasonable basis for a lawsuit.

Under some circumstances, an attorney may seek your financial contribution towards the expense of hiring this medical expert. The fee for an expert can differ based on the specialty and experience of the expert but can range from $1,000 to $2,500 for a preliminary review. In other circumstances, the attorney may pay this fee up front and later deduct this expense from any recovery you receive either through settlement or verdict at trial.

Medical malpractice is a type of professional negligence, specifically the negligence of a medical provider. Negligence means that an individual had a duty to act in a certain way but failed to do so.

Standard of Care

The first element of a medical malpractice case is to establish what the “standard of care” was for the provider. The standard of care means what the accepted practice was for a physician, surgeon, nurse, etc., under the circumstances of your medical care.  For example, was it the generally accepted practice for a physician to order a certain test but the doctor failed to do that? Should a doctor have seen something on a radiology film but missed it? Did the doctor diagnose one condition, but failed to consider another condition that was in fact what you were suffering from?

Breach of the Standard of Care

The next element of a medical malpractice case is establishing that there was a breach of the standard of care, sometimes also called a deviation from the standard of care. There are many ways in which the standard of care may be breached including a failure to diagnose or misdiagnosis, a delay in responding to a medical emergency such as those occurring during pregnancy or birth, surgical mistakes, and mistakes in prescribing or administering medications.

Causation

The third element of a medical malpractice case is proving that the deviation from the standard of care was a direct and substantial cause of an injury or harm to you. There must be some connection between the actions or inactions of the medical providers and the injuries you suffered. The elements are like links in a chain: each must be connected to the other to complete the chain and prove that a doctor or medical provider is legally responsible or liable for your injuries.

Damages

The last element of a medical malpractice case is that you must prove that you have been either seriously or permanently injured or harmed.

Each of these elements must be established and supported by an expert, or someone in a similar field of work as the defendant medical provider who is knowledgeable about the accepted medical practice and standards of care.

Not necessarily. Surgeons and doctors cannot guarantee a good result despite the advances in science and medicine in the 21^st century. The practice of medicine can be both an art and a science which requires a doctor to use their judgment at times to determine courses of actions which may all be within the standard of care. An unsuccessful surgery or procedure is considered medical malpractice if a particular action or inaction of the doctor caused your injury and satisfies the above elements.

Many people commonly only think of medical malpractice occurring at the hands of a doctor, however, malpractice liability can extend to staff who make errors in medical treatment as well, such as nurses or pharmacists. If a nurse is employed by a hospital or medical facility, their employer can be “vicariously” liable for their wrongdoing and can be pursued for inadequately training or supervising their employees.

While it is best to follow the instructions of your doctor, patients always have the right to choose whether to agree to a treatment, procedure, or test. If failing to comply with your doctor’s directions were the cause of your injury, a lawyer for the doctor or hospital will be able to make a strong case against you. On the other hand, if the instructions you did not follow have nothing to do with your injury or how you were injured, your actions will not be as relevant. Your ability to bring a case depends on what caused your injury.

Yes.  Reviewing your medical records will be essential for any attorney to fully understand whether you may or may not have a meritorious medical malpractice case. It is always helpful to have obtained your medical records in advance of speaking with an attorney by contacting your medical provider directly or speaking with the health care facility’s medical records department. If you have not obtained your records prior to speaking with or meeting with a medical malpractice attorney, an attorney can always obtain these records or assist you in doing so.

This does happen occasionally, but it is unlikely. Although alterations to medical records by health care professionals are rare, the best attorneys will look for inconsistencies in the medical records that indicate an alteration has been made.  A medical provider who alters medical records would face significant licensing and disciplinary actions, and potentially criminal charges as well.

The answer to this question varies greatly depending on the conduct of the doctor or hospital, the nature of the injuries, consequences of the injuries, and permanency of the injuries. The idea of damages in a civil (non-criminal) legal case is to make the injured individual whole again by way of monetary compensation. Broadly speaking, there are two types of damages that are recoverable in a medical malpractice case, economic damages and non-economic damages. The financial losses you experience as a result of your injuries and the consequences of those injuries are considered economic losses or damages. Examples of economic damages include past and future medical expenses, past and future loss of wages if you were out of work, and future lost earning potential. Non-economic damages are those damages that compensate for more intangible losses such as the pain and suffering you have endured, and your loss of enjoyment of activities and hobbies you once were able to participate in. While some states cap the amount of non-economic damages that can be recovered in medical malpractice cases, New York is not one of them. There is no limit to the pain and suffering damages that can be recovered in NY. How the above types of damages apply to each case is different and will need to be carefully evaluated by an attorney. An attorney may also utilize the expertise of an economist to fully calculate your potential future economic losses and ensure that you are fully informed about the value of your claim.

Yes. In some circumstances a case can be settled before a formal lawsuit is filed. All doctors in New York are required to carry medical malpractice insurance and it may be possible to settle with the insurance company before filing a formal lawsuit. Settlements often occur when the cause of your injuries is clear, and the injuries you suffered and permanent consequences of those injuries are known. Unlike more common types of personal injury claims, often a physician in a medical malpractice case must approve the settlement because of “consent to settle” clauses in their medical malpractice insurance documents. This means, that there are circumstances where, despite the case being in your favor, the doctor may not consent to a settlement before trial and would rather have the case heard before a jury.

In New York, the attorney’s fees for a medical malpractice case are dictated by court rules. Personal injury attorneys most often work on a contingency fee basis, meaning the attorney will not get paid unless you win at trial or receive a settlement. The medical malpractice fee schedule works on a sliding scale meaning the attorney’s fee is a decreasing percentage of the sum recovered, as the sum recovered increases. Specifically:

• 30% of the first $250,000 recovered;
• 25% of the next $250,000 recovered;
• 20% of the next $500,000 recovered;
• 15% of the next $250,000 recovered;
• 10% of any amount over $1,250,000 recovered.