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Medical Malpractice In New York: The Basics

Medical Malpractice In New York: The BasicsMedical Malpractice In NY

Medical malpractice is negligence on the part of a doctor or other health care provider. It occurs when there is 1) a doctor-patient relationship and 2) that doctor or health care provider deviates from an accepted or standard medical practice and 3) injury or the death of a patient occurs as a result of that deviation. The standard is compared to what an average medical professional would have done when faced with the same circumstances. In order to prevail in a medical malpractice case, the patient must show that a competent doctor would have acted differently in the care and treatment of the patient. The doctor does not have to provide the “best” care, but rather has to provide care that is reasonable and in line with a customary standard of medical care. Simply not being satisfied with the results of your care is not enough to bring a claim.

Table Of Contents:

General Negligence vs. Medical Malpractice

For those reasons, proving negligence in a medical malpractice case is a slightly different task than proving negligence in a general negligence case. For example, if someone sustains an injury after being rear-ended by another vehicle, all the injured party must show in order to obtain compensation is that; the other party failed to act reasonably in the operation and control of their vehicle; the lack of reasonableness caused the collision, and that their injuries are a direct result of that negligence.

In contrast, a person who has been injured as a result of medical malpractice must show that the health care provider deviated or departed from an accepted or standard medical practice. This may sound easier than it actually is, especially considering the fact that different health care providers receive different levels and degrees of medical training. However, it comes down to whether or not the standard of care was met. Was the care reasonable? Would a similarly situated physician have acted in the same way?

The second important difference between general negligence cases and medical malpractice cases has to do with filing requirements. To file a medical malpractice lawsuit under New York Civil Practice Law and Rules, Section 3012-a, the plaintiff must attach to the lawsuit a document called a Certificate of Merit. This certificate affirms that the attorney for the plaintiff has consulted with an expert physician and that as a result of that consultation, the expert physician has opined that there is a reasonable ground for the commencement of a medical malpractice lawsuit and that the claim is meritorious.

In other words, filing a medical malpractice lawsuit in New York requires a medical opinion from a licensed physician indicating that the case has merit. There is no such requirement when it comes to a general negligence case, such as one involving injuries sustained in an automobile collision.

The third—and perhaps most consequential—difference is that jurors tend to treat doctors differently from non-physician tortfeasors because of their special knowledge and experience. In doing so, jurors sometimes treat them differently than they do other negligent individuals because of the juror’s own experience with doctors, whether it has been positive or negative. Furthermore, since most jurors do not have medical training and do not have experience in the medical field, it can be very challenging for some jurors to evaluate a defendant doctor’s conduct.

Types of Medical Malpractice Cases

Medical malpractice can involve a wide array of medical scenarios. Examples include failure to diagnose a medical condition, delay in treating a medical condition, misdiagnosis of a heart attack, birth injuries such as a brachial plexus injury, Erbs palsy, cerebral palsy, or brain damage, gynecological malpractice, hospital negligence, emergency room errors, medication errors, anesthesia malpractice, and all types of surgical errors. Wrongful death can also fall under the umbrella of medical malpractice, as we will discuss in the chapters ahead.

The Plaintiff

Who can file a malpractice claim? A medical malpractice claim can, of course, be filed by the patient who was injured. However, what happens if the patient is now legally incapacitated, i.e., in a coma, or unable to understand the proceedings? In that case, a guardian of the person or of the property can be appointed by the court. With court approval, the guardian would assume the right to bring the claim on behalf of the injured and incapacitated party.

If the injured party is a minor (i.e., under the age of 18), then they cannot bring the lawsuit themselves; the parent or natural guardian of the minor would need to bring the lawsuit on the minor’s behalf.

If the injured party is deceased, and their death was the direct result of the malpractice, then a wrongful death lawsuit can be brought by a personal representative of the decedent’s estate.

The Defendant

A medical malpractice claim can be brought against an individual doctor or another healthcare provider (not limited to; a general practice physician, internist, OBGYN, radiologist, podiatrist, nurse, physician’s assistant, dentist, hospital, nursing home, rehabilitation facility, etc…). Some lawsuits may include a number of parties such as a hospital, the treating physicians, physician assistants, nursing care facilities, and other medical facilities as defendants. Generally, a case can be brought against anyone who was negligent in providing medical care to the injured patient, and that negligence was the cause of the claimed injuries.

The Statute of Limitations

The statute of limitations for filing a medical malpractice claim in New York is two and a half years, and is governed by New York Civil Practice Law and Rules section 214-a. The clock begins to run on the statute of limitations on the date that the medical negligence occurs. If the plaintiff fails to bring a lawsuit within those two and a half years, then they will be forever barred from bringing that claim. In other words, plaintiffs have one shot at filing a medical malpractice claim, and if they miss the two-and-a-half-year window of opportunity to bring a lawsuit, they are out of luck and will be forever barred from doing so. Anyone who suspects that they are the victim of malpractice should act quickly to schedule a consultation with an experienced medical malpractice lawyer.

  • The Caveats

There are some caveats to the above analysis. The first applies when it is continuous, ongoing treatment being provided by the offending physician, hospital, medical facility, etc.. after the negligence has occurred. Under these circumstances, the patient has two and a half years from the date of the last treatment for the condition in issue with that particular defendant. Be aware that courts have defined “continuous treatment” in a very specific way, so your attorney must be fully knowledgeable of those parameters. Simply continuing to visit your doctor regularly may not be enough to establish continuous treatment.

The second caveat has to do with what is called the discovery rule, which provides the patient with additional time to file a lawsuit, so long as the patient was unaware that a mistake or medical malpractice occurred at the time of the negligence, but discovers it later.

The discovery rule applies in only two situations. The first is when a physician leaves behind a foreign object (i.e., any object that was absolutely not meant to be implanted inside the patient’s body like a sponge or surgical instrument) during a surgical procedure. If this occurs, the statute dictates that the patient has one year to file a claim, commencing from the date that they discovered the mistake or reasonably should have discovered the mistake.

The second situation in which the discovery rule applies is when a doctor (or other healthcare professional) negligently fails to diagnose a patient with cancer when they otherwise should have. “Lavern’s Law” (amending CPLR Sec. 214-(a) and Sec. 203(g)) was enacted in New York and signed into law on January 31, 2018, and changed the way the statute of limitations is calculated for these types of medical malpractice cases involving the failure to timely diagnose and treat cancer. Prior to the new law, if a patient discovered that their doctor missed a cancer diagnosis, they had 2½ years from the date of the missed diagnosis to commence a lawsuit. However, in many cases of delayed cancer diagnosis, the patient does not even realize that the diagnosis was missed until months or even years later, and by that time the statute of limitations has passed. Thanks to Lavern’s Law, the statute of limitations now begins to run on the date the cancer is discovered, or when it should have reasonably been discovered by the patient. The plaintiff now has 2 ½ years to bring the action from that point, or 2 ½ years from the last date of treatment where there is continuous treatment for the same illness, injury, or condition which gave rise to the cause of action (whichever is longer), provided that the action is started within 7 years of the malpractice (or last date of continuous treatment).

  • Suing a Municipality

Please be aware that there is a much shorter period of time within which a patient must bring a claim if the defendant is a municipality, such as a county, city, or state hospital, or an employee of the municipal facility. Keep in mind that some medical clinics, nursing homes, and rehabilitation facilities can also be municipal entities. The attorney must be diligent to confirm whether or not the offending facility or personnel are actually municipal entities for purposes of the statute of limitations.

Generally, you have one year and ninety days to file a lawsuit against the City of New York. In order to file a lawsuit, however, a Notice of Claim or its equivalent must be properly filed with the municipality within 90 days of the malpractice, though these time frames vary depending on the municipality being sued. Filing the Notice of Claim is a prerequisite to filing the lawsuit. Again, the statute of limitations varies depending on whether you are using a city, state, or local entity. Understanding the statute of limitations in medical malpractice cases is tricky and can be filled with legal landmines depending on the fact pattern of each individual case. It cannot be stressed enough that anyone who feels they have been a victim of malpractice should speak with an experienced attorney as soon as possible to determine the proper filing deadlines.

For more information on Medical Malpractice Claims In New York, an initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (646) 828 1980, call Oddo & Babat, P.C. today.

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