We all go to hospitals, see doctors, surgeons, and other medical professionals to feel better, but sadly, the treatment we receive doesn’t always work out the way we hoped it would. There are situations where an individual’s illness or injury is not properly treated, where a condition is misdiagnosed, where the doctor fails to diagnose a condition, or when the doctor you see causes a new injury.
A doctor who renders medical service to a patient is obligated to have a reasonable degree of knowledge and skill that is expected of an average doctor who provides the same treatment in the medical community in which the doctor practices. The law in New York states that a doctor is liable for damages to a patient if the doctor provides negligent care or treatment to the patient. Negligence is defined as doing something that a reasonably prudent doctor would not do under the circumstances or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice.
Frequently Asked Questions about Medical Malpractice
Our personal injury lawyers provide answers to some important questions below.
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.
Do my records need to be reviewed by another doctor?admin2020-07-09T18:15:17+00:00
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.
How much will it cost to have my records reviewed by another doctor?admin2020-07-09T18:14:48+00:00
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.
What are the elements of a medical malpractice lawsuit?admin2020-09-24T18:57:29+00:00
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.
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.
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.
If a surgery is not successful, does that mean I have a medical malpractice case?admin2020-07-09T18:13:32+00:00
Not necessarily. Surgeons and doctors cannot guarantee a good result despite the advances in science and medicine in the 21st 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.
Can I sue a nurse for medical malpractice?admin2020-07-09T18:13:06+00:00
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.
If I did not follow all of my doctor’s instructions, can I still bring a lawsuit?admin2020-07-09T18:12:38+00:00
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.
Do I need to obtain my medical records?admin2020-09-18T15:50:17+00:00
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.
Will my doctor change my medical record when he or she finds out that I am filing a medical malpractice lawsuit?admin2020-07-09T18:11:16+00:00
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.
How much money can I expect to receive from my medical malpractice case?admin2020-07-09T18:10:55+00:00
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.
Can my case be settled without a lawsuit?admin2020-07-09T18:10:28+00:00
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.
How much does a medical negligence attorney cost?admin2020-09-18T16:07:49+00:00
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:
You have the right to a trial by jury or by the judge who will act as both judge and jury
At a trial, the injured person must prove it was more likely than not that the defendant was negligent and caused injuries
The judge or jury will listen to all the evidence presented and the arguments by the lawyers, apply the facts to the law, and render a decision
Recent Verdicts & Settlements
Automobile Accident Plaintiff was a passenger in a vehicle which went off the road and rolled over, causing him to suffer significant permanent injuries, including skull fracture; fractured mandible requiring surgical placement of plates and screws; facial fractures and lacerations; sternal fracture; spinal fractures; lacerations to spleen, liver and lung; multiple rib and toe fractures; tinnitus and hearing loss; post-traumatic stress disorder; facial scarring and numbness.
Plaintiff was an ironworker who was injured when he fell from a ladder, suffering fractures to both elbows resulting in permanent loss of strength and loss of range of motion in both arms. His impairment limited the number and types of employment opportunities and limited his future earning potential.
Plaintiff was injured when a fork from a forklift truck fell on top of his left leg, severely fracturing the tibia and fibula, requiring numerous surgeries and resulting in a permanent, partial loss of use of his leg.
Nursing Home Negligence An 87-year-old man was discharged from a local hospital on the afternoon of his death and returned to his assisted living facility. His health began to deteriorate throughout that evening; a nurse was told to check on him but never did. Facility staff found him unconscious on the floor in his room later that evening; paramedics were unable to revive him. It was claimed that the facility failed to obtain appropriate medical advice, assistance and treatment.
Federal Employers Liability Act/FELA
Plaintiff suffered a significant back injury while working for CSX.
Medical Negligence Plaintiff suffered injuries as a result of negligent monitoring of prescription medication.
Plaintiff, a roofing contractor, suffered a fractured skull, cervical spine fracture and fractured ribs after falling from a roof. The injuries left him with chronic pain and fatigue, limited tolerance for walking, lifting, or carrying and limitations in his hearing and vision.
Farm/Tractor Accident The infant plaintiff fell from a tractor being operated by a farm employee and was run over by the tractor. The 10-year-old boy suffered a femur fracture requiring surgery, multiple facial fractures requiring surgery, foot and toe fractures and loss of consciousness.
Plaintiff was assaulted outside of a bar in Saratoga and as a result suffered a traumatic brain injury, a fractured skull, brain swelling and brain bleeding, facial contusions and bleeding, as well as lacerations and bruises on his body. He also suffered from short and long term memory deficits and other cognitive deficits.
Wrongful Death Plaintiff, a 49-year-old man, was discharged from the hospital with critically low levels of potassium, which precipitated a fatal arrhythmia at home and subsequently caused his death. His family brought a claim against the hospital for medical negligence and wrongful death.
Bicycle Accident Plaintiff suffered two dislocated shoulders and a dislocated elbow after he was struck by a vehicle, which negligently swerved onto the shoulder and into the bike lane.
Vicki Testimonial Transcript
Well, I met George in 2014. My son was arrested for a criminal offense, and George—he has this ability, it’s just who he is. He’s genuinely empathetic and he’s very compassionate and he has the ability to just make you feel safe. You know? I just always felt I was in great hands and my son was in good hands and that we would have a good outcome of our situation and we always have. And he’s brilliant. He’s a brilliant lawyer. He’s very skilled and very creative. He has excellent rapport with all the judges and DAs and officials, and he’s always found a rehabilitative outcome for my son which I genuinely appreciate.
Laurie Testimonial Transcript
George was referred to me by my estate attorney. They go way back and it was a great referral, I don’t think I could have done any better, it was a very good match for me. Something that was really really instrumental in the whole thing was George keeping us up-to-date on what was going on and very much included. I was invited to be at all the depositions if I wanted to be and he gave me all the written depositions to read through, so I was always up-to-date on what was going on and I felt like a part of the process. I would definitely recommend George to other people. In fact, about 2 weeks ago I did. A friend of mine was in a pedestrian car accident, she was the pedestrian and is in pretty rough shape, and he was the first person I thought of so I actually asked him if it would be in his purview and he said yes. And I know that she’s very happy with him so far.
Jules Testimonial Transcript
What brought me to the firm was a personal incident where Andrew was recommended to me very highly by a family friend who’s also an attorney, and Andrew represented me to great satisfaction in that case. What impressed me the most about Andrew was his direct straightforward approach, and he has this incredible way of setting you at ease and yet telling you the good and the bad of a situation. I felt that he was very much a straight shooter and lived up to the reputation that preceded him. I would recommend them and Andrew Safranko to anybody in the world. They’re just that class of a group of people.
Chuck Testimonial Transcript
Well, I came to LaMarche Safranko Law because I knew Andy was here and he’s helped me in the past and I just feel so comfortable coming to him because you know you’re going to get the best outcome that you can get in a criminal law field. He’s done such a fabulous job for me and I’ve seen what he does for me, so I’m sure he’ll do the same—put out the same effort and energy and zeal it takes to win their case like he has mine. I would feel very comfortable recommending him.
“Dear George, Andy and Staff,
Thank you all for your kindness and all your help in getting back to my wellbeing and life. I could not have done it without you all. Everything is going so well again. I recommend you highly. Thanks Again!”
I cannot thank you enough for your hard work, diligence, and selfless manner that you put towards my legal difficulties in Colonie. From the first moment I met you, you helped reassure me that things were going to turn out in a more favorable manner than I originally thought. Clearly, the final result of my court case displays the quality of time and work that you put into this….
“The arrest of my husband in 2008 was an extremely difficult and emotional time for our family. The arrest turned our lives upside down. It was sudden and unexpected and had tragic emotional as well as financial consequences. I had no idea what to do under the circumstances….
“I can honestly say that the best decision I’ve ever made was retaining George LaMarche as my attorney. I was in a situation where everything wasat risk; my career, livelihood, and the ability to provide for my family. In desperation, I contacted over a dozen attorneys. The majority of the lawyers I spoke with promised results without seeing paperwork or knowing valuable facts….
“My family and I cannot thank George and his staff enough for all of the support and guidance they have given us over the past six months. Anyone who has ever suffered a personal injury knows how difficult they are to overcome, but I’m glad we had such an intelligent and hardworking attorney on our side so I could focus on my recovery rather than on the details of the case….
Thank You so much for answering my question, and so expediently!
The dedication, respect, and consideration with which you treat your clients, current and past, is remarkable. It is why I reached out to you when searching in my time of need, and why I would highly recommend…
“I cannot thank George E. LaMarche lll and his team for the excellent legal work they provided for my son, and in extension, our entire family. His experience, knowledge of the law, networking ability and communication is second to none. In our case, our son was wrongly accused by a small town police officer and charged with 5 tickets…
“No one likes to be in a bad situation, but if you need a lawyer George is your man. Not only does he point you in the right direction he offers good advice for your future. As much as we bring him business he does not encourage that next time anticipation….
“I wanted to take this opportunity to thank you for your excellent representation on my recent matter. I have worked with lawyers, and in law firms much of my professional life, but I have never encountered the rare mix of skill, integrity and humanity in one individual—you….
“I wanted to express my deepest appreciation to Mr. Andrew Safranko for the exceptional job he did in regards to my legal representation. Mr. Safranko displayed the utmost in professionalism and discretion during the entire court process, and took the time to explain each and every step….
“The staff at LaMarche Safranko Law took care of whatever I needed, it was just fabulous. It was top shelf, if I called, I got George. If he was in a meeting, they left him a message. He called me right back after the meeting. Everybody was very courteous and very nice there. If I left a voicemail, everybody got back to me quickly. The level of service was very, very good and I would Highly recommend them.”
“Throughout the attorney client relationship regarding my personal injury lawsuit, George and his staff continually exhibited tremendous amounts of legal knowledge, skill, and a vast amount of expert resources that ultimately resulted in a final judgment in my favor. George was there every step of the way to explain where we stood and what to expect next and there was never a need to question his professional judgment…
Thank you so much for everything you have done for our son over the last three years. This has been a very challenging time for our family and the knowledge that our son has an attorney as capable and amazing as you are has given us peace of mind!
“I am an attorney who found himself in the middle of a serious, personal legal matter that compromised not only my personal life but my professional life as well. I immediately contacted Andrew (Andy) Safranko, Esq. Andy worked tirelessly and extremely hard to bring my legal situation to a very favorable resolution. In so doing, Andy not only saved certain aspects of my personal and professional life…