Medical negligence happens when a medical professional provides substandard care to a patient, and that inadequate medical care directly results in an injury, or it exacerbates an existing condition.
Medical negligence can include improper treatment, failure to diagnose a condition, which then gets worse and causes injury, surgical errors, and more.
If you or a loved one have been the victim of medical negligence, then a medical malpractice attorney can take your case and walk you through the entire process of a medical malpractice lawsuit. He or she can work towards a trial or a settlement deal if you’ve been injured or disabled.
Every year, billions of dollars are paid out in medical malpractice payouts, and according to the Journal of the American Medical Association (JAMA), medical negligence is one of the leading causes of death in the United States.
Here are some of the cases when it might be appropriate for you to seek the counsel of a medical malpractice lawyer.
- You’ve suffered an injury during surgery
- You got seriously infected with a virus or bacteria while in the hospital or doctor’s office
- Your doctor failed to diagnose a condition which then led to further complications, injury, or disability
- Your doctor gave you a wrong prescription that caused health issues
- You were not adequately informed about the risks or consequences of a medical procedure
- Your doctor applied anesthesia wrong
- Your doctor misread or ignored your lab results
- Surgery was performed unnecessarily
- Surgery performed on the wrong site
- Improper dosage of medication
- Premature discharge or poor follow-up
- Neglect during taking patient history
- Inadequate testing
These are some of the cases where you may be owed a settlement from the doctor or the hospital.
In this article, we’ll take a closer look at medical malpractice, explain how it works, how long it takes, and more. We’ll also list some of the top medical malpractice lawyers in New York, so you can get in touch with them if you’ve been a victim of medical negligence.
What is medical malpractice?
If you’ve suffered an injury or disability due to negligence or inadequate care from a doctor, hospital, or another health care professional, you might have been a victim of medical malpractice.
The negligence can occur at any step that the health care professional is expected to perform with full care and attention, and the failure to do so can harm the patient’s health. For example, negligence can happen during diagnosis, treatment, health management, or even during care after a procedure.
But a negative outcome doesn’t automatically mean that there was negligence, or that you can make a claim. To qualify for consideration under the medical malpractice law, your claim has to meet specific standards.
What are the 4 Ds of medical malpractice?
The 4 Ds of medical malpractice are the four elements that must be present in a case for the claim to be viable.
Duty – Your doctor has a duty to provide a standard of care
Under the law, medical professionals are expected to adhere to a certain medical standard recognized by the profession as a whole to be reasonably prudent, when they are providing care. This is typically referred to as the standard of care.
Dereliction – There must be a violation of the standard of care
You, as a patient, have the right to expect that your doctor will stick to these accepted standards at the minimum. If they did not stick to the anticipated level of care, and that resulted in an injury or health complications for you, then there might be a case to establish negligence on your provider’s part.
Direct causation – Medical negligence must have caused injury
Another requirement for a valid medical malpractice claim is that there must be an injury or damage involved.
In other words, it’s not enough for a malpractice case that there was negligence on your provider’s part. That negligence must have directly caused you health consequences that wouldn’t have happened otherwise.
An adverse outcome in itself is not adequate grounds for a malpractice case. You must prove that the negligence caused the injury because otherwise, there won’t be a case.
Damages – The injury from negligence must cause significant damages
For the case to be viable, you have to prove that the negligence resulted in an injury that caused significant pain and hardship. It must have resulted in disability, unusual pain, suffering, or hardship, loss of income, and significant medical expenses.
A malpractice lawsuit can be costly to litigate. There are expenses of prolonged testimonies from medical experts, and also countless hours of deposition procedures.
The potential settlement must be significantly higher than the cost of litigation for a claim to be viable. Otherwise, you might find it challenging for a malpractice attorney to accept your case.
What do medical malpractice lawyers do?
If you have a viable claim due to medical negligence, you’ll need the help of a medical malpractice lawyer to go through the litigation process in the state of New York.
One of the reasons that you’ll want to hire a malpractice attorney is that it is difficult to prove negligence on the part of the hospital, doctor, or other medical professionals, which is one of the key components of a claim.
When you get in touch with an attorney, they will gather as much information about your case as possible, to make sure that your case meets all the requirements of a viable claim, as stated in the previous section.
Besides helping you understand your rights, and your options based on your specific case, here are some of the steps that a malpractice attorney will go through to build a case for you.
- Collect depositions of plaintiffs, medical experts, and others who may be relevant
- Collect medical records for analysis
- Conduct research to gather information relevant to the case
- Coordinate independent medical examinations (IMEs) with plaintiffs to obtain an objective evaluation of injuries from negligence
- Review and retain expert witnesses
- Establishing a potential value of your claim
- Establishing who the liable parties are
Beyond these regular responsibilities, a malpractice attorney also needs to have a deep understanding of the local and state laws that may affect a medical negligence case.
How to pick the right medical malpractice lawyer?
When searching for a medical malpractice lawyer, you may come across many personal injury attorneys, since the same firm often offers both services.
But you must be careful to pick an attorney who specializes in medical malpractice because he or she will require knowledge on both medicine and the laws in New York. The cases are almost always complex, and you’ll need someone who can navigate both fields.
Here are some of the qualities to look for in a medical malpractice attorney:
- The ability to comprehend a complex medical record
- An adequate understanding of medicine
- Having enough experience to anticipate the opposing team’s tactics
- The ability to locate the right experts and ask the right questions relevant to your case
- A proven track record of success with cases similar to yours
When going through a legal battle, it is not always enough to have the facts and the evidence on your side. It often comes down to the ability of the attorney to prove and convince others that it was medical negligence that specifically caused your injury.
You should pick an attorney that knows how to gather the right evidence, question the right experts, ask the right questions, and package all of it in a way that makes it favorable to your side of the story.
If you’re in New York, we have included some of the top medical malpractice attorneys with proven track records of success further below in the article.
How long does it take to get a medical malpractice settlement?
You may have significant financial obligations directly related to your medical negligence case, and you may need the funds from a settlement to pay for some of your medical and other expenses.
You should know that, in general, it can take anywhere from six months to a year to settle a claim. For many families, that is too long of a wait if they have a viable claim. If you need the funds quicker, speak to your attorney about your options, but keep in mind that in most cases, a quicker settlement will result in a lower compensation overall.
The time it will take for your specific case will depend on the complexity and the strength of your case, as well as the ability of your court to handle new cases. Often, it takes longer because the courts are overwhelmed with backlogs of cases, and the process becomes very slow.
Even if you decided to settle outside of court, there is a part of the process that has to happen within the court system, and it can be time-consuming.
Your attorney will try to optimize for both the promptness with which you get paid, as well as for the amount that you get. But if you opt for quickness too much, you could end up losing significant sums of money, often in the six figures.
On the other hand, if you go for maximum payouts, it can take over a year (or more) until you get the money in your hands.
What is the process of a medical malpractice lawsuit?
Let’s look at the process that you and your attorney will go through during the malpractice lawsuit. It will also help you understand a little bit better why the process can take so long.
Discovery process of a medical malpractice lawsuit
If your attorney accepts your case because he or she believes that you have a viable claim, then a complaint will be filed on your behalf, and all relevant parties will be notified.
Once complaints are filed, both sides will begin the discovery process. Both parties will gather information, documents, and evidence to build towards their respective cases and arguments.
Both the defense and the plaintiff will hire expert medical witnesses to review the case and the merits of the complaint of medical negligence.
The expert medical witnesses
The medical experts, who are both neutral, will investigate all the details involved in the case. They will establish the standard of care, and if negligence did, in fact, occur.
When hiring the medical expert, your attorney (as well as the defense) will look to the guidelines set by the state of New York regarding the requisite level of specialization of the expert in the relevant medical field of the case.
The medical experts will also try to establish if the negligence (if it occurred) directly led to significant damages to the patient.
If both experts agree that there was no negligence, or that it did not directly cause damages, the case will be dismissed.
If the two experts disagree on whether negligence caused damages, then more expert witnesses will be called.
If both agree that there was negligence, and it led to injury, then the lawsuit will proceed.
Negotiations for a potential settlement
If the discovery and the expert witnesses establish that there is a case, the negotiation phase will start.
The defense and their insurance provider will obviously try to keep the amount as low as possible, and they will most likely also try to settle out of court.
The defense will usually try to avoid trial for two reasons. The cost of a trial is significant, and they might have to pay more if you have a strong case.
On your side, your attorney will look at the entire picture, consult with you, and decide on the right course of action. They will try to get you the maximum amount as quickly as possible because it is also in their best interest, as we’ll explain below.
If your attorney and the defense can’t come to an agreement on a settlement amount, the case will move on to the trial phase.
Settlement vs. jury awards
If the case is settled outside of court, the average settlement amount is around $425,000. However, if the case goes to jury trial and wins, the average award is over $1 million.
Despite the big difference in payouts, the vast majority of cases get settled outside of court.
Whether you should take a settlement or go for trial will depend on various factors, such as how urgently you need the funds, the settlement offer, the strength of your case, and more. You can consult with your attorney to get a clear picture of all your options.
But here are some things to keep in mind when it comes to settlements vs. jury trials.
1. A trial can be expensive, time-consuming, and success is not guaranteed.
2. If you pass on a settlement offer, and then later a new detail emerges that puts your claim in jeopardy, both you and your attorney will end up losing out.
3. A trial may be a better bet if you have a strong case, and your attorney feels that the settlement offer does not justify the details of the case.
4. Having an attorney who is skilled in negotiations is critical, because the defense will often wait till the last minute before a trial to offer a large settlement.
How to collect your award from a malpractice lawsuit?
Once you agree on a settlement or receive an award due to a jury verdict, the case is complete and it is now time for you to get paid.
When it comes to payments, you have two options. You can decide on a structured payment or a lump-sum payment.
Which one is right for you will depend on your circumstances and preferences, but most plaintiffs and attorneys prefer lump-sum payments. It is the least complicated and allows for more financial flexibility.
On the other hand, a structured payment over time (sort of like a payment plan) may provide you with the security of mind that you will get a steady payment for a period of time, reducing your risk of mismanaging your funds.
What percentage do lawyers take in medical malpractice?
When it comes to paying your attorneys for a medical malpractice case, almost always you’ll have to pay them for their costs from the final settlement amount, as well as a percentage of your award.
You will make an agreement with your attorney before the proceedings begin on the specific terms.
While the specific terms may vary, you can expect to pay around 30% in fees if the award is below $250,000 in the state of New York. The percentage goes down as the settlement number rises. For awards over $1 million, the attorney usually takes around 10%.
But remember, you may also have to pay your attorney for their time and costs that were incurred during the process.
On one hand, it is a good thing that you don’t have to pay your attorney up front. On the other hand, it is usually also why it may be challenging to find an attorney who will accept your case, because they typically only accept cases they believe have a strong chance of winning a settlement, so they can get paid.
What is the statute of limitations on medical malpractice in NY?
In New York, medical malpractice claims must be filed within 2 ½ years from the date of the alleged negligent action or omission that caused the patient’s injury.
Is medical malpractice hard to prove?
Medical negligence can indeed be a challenge to prove. It is because of this difficulty that it is also often challenging to find an attorney to take your case. Only if an attorney believes that you have a strong case, they will be more likely to accept it because their odds of getting paid are higher.
Here are a couple of reasons why it may be difficult to prove medical negligence.
Complexity of evidence
To prove negligence, your attorney has to comprehend complex medical information. They might even have to hire expert medical witnesses to figure out the information. And sometimes, even if they understand it, they might explain it in a way that the jury misunderstands the information, and wrongfully sides with the defendant.
Difficulty finding expert medical witnesses
It can be a challenge to find an expert medical witness, especially if the case requires specialized knowledge in a particular area. The medical expert may be acquainted with the doctor your complaint is against, and many times, they don’t want to publicly speak against another colleague.
Who is the best medical malpractice lawyer in New York?
Here are some of the top medical malpractice attorneys in New York.
Abed & Silber, PLLC is a highly-rated New York law firm helping victims of personal injury and medical malpractice for more than 30 years.
Richard H. Abend is a premier trial lawyer, with his primary focus being injury law. He has dedicated himself to representing individuals who have been injured due to the negligence of others.
Josh Silber is experienced with all types of civil matters, whether its accident victims, injured persons, or victims of malpractice.
When it comes to malpractice, Abend & Silber have a proven track record of getting results for their clients.
They’ve won a $2,750,000 jury verdict in the Nassau County Supreme Court, for a client who developed advanced-stage prostate cancer due to failure of diagnosis on the doctor’s part. They’ve also won a $1,300,000 settlement in New York County Supreme Court, for a woman who developed sepsis and permanent disfigurement due to failure of diagnosis.
432 PARK AVE SOUTH
New York, New York 10016
Free Case Consultation
Dalli & Marino LLP attorneys have been representing victims of medical malpractice since 1995. They serve New York City, Brooklyn, the Bronx, Queens, Staten Island, Nassau, Suffolk (Long Island), and Westchester County.
One of their founding members, John Dalli, Esq. is an expert when it comes to litigating and trying the most complex medical malpractice lawsuits.
Dalli & Marino have won countless cases for their malpractice clients, including a $5.95 million award for a birth injury due to medical malpractice during delivery, and a $900K award for a woman who was the victim of medical malpractice in a Kings County hospital.
Here are some areas of medical malpractice that Dalli & Marino can help you with:
- Failing to properly monitor a patient
- Errors during surgery
- Medical negligence
Abraham Jaros, co-partner and founder of Jaroslawicz & Jaros, is a medical malpractice expert with over 40 years of experience. He has a proven track record of success. In 1984, he won the first $1 million-plus medical malpractice verdict in Sullivan County, N.Y. Then, in 1985, Mr. Jaros won the first $2 million dollar verdict in Albany, N.Y., also a medical malpractice case.
Ever since then, Mr. Jaros has won numerous malpractice lawsuits on behalf of his clients from all over New York.
Here are some examples of the awards he has won for his clients:
- $4 Million settlement for brain damage in a child because of an undiagnosed infection.
- $4 Million settlement for the estate of a woman who passed away after going through elective gastric surgery.
- $3.5 Million in settlement for brain injury in a 48-year-old man after a delayed diagnosis of meningitis.
New York, NY 10007
For a free consultation:
Free transportation can be provided.
The New York City personal injury law firm Jonathan C. Reiter Law Firm, PLLC has assembled a highly accomplished team of attorneys, and they’ve become one of the most prominent law firms in the metropolitan New York City area.
Jonathan C. Reiter is regarded as one of the best New York City medical malpractice lawyers. With his team of talented attorneys, nurses, and investigators, they have developed a reputation for winning large sums for their clients.
In 2014, Jonathan C. Reiter won one of the largest medical malpractice verdicts in the United States for that year. A jury awarded more than $22 million in a medical malpractice case involving brain damage caused by delayed treatment.
The attorneys at Lipsig, Shapey, Manus & Moverman, P.C. are highly experienced in dealing with the complexities involved in a medical malpractice lawsuit.
They offer a free consultation to understand your case and explain your options in detail so that you can make an informed decision on whether you want to move forward.
With their knowledge and understanding of the intricacies and winning tactics involved in a malpractice lawsuit, Lipsig, Shapey, Manus & Moverman was recently able to win a $6,300,000 Settlement for a client.
Their client had a fractured elbow which the doctor decided to operate on without proper diagnosis, ultimately resulting in the death of tissue and loss of muscles and nerves in the arm.
Free Consultation: 917-268-0344