New York Medical Malpractice

New York medical malpractice claims are made against doctors or other healthcare professionals or organizations whose standard of care fails to meet an acceptable level. When the standard of care falls and a patient suffers harm as a result, a New York medical malpractice lawsuit may be filed against the doctor, health care provider, or institution whose actions caused the harm. Medical Malpractice lawyers typically include claims of medical negligence in hospital malpractice complaints.

Medical negligence involves any situation where a healthcare professional conducts his or her job duties in a way that fails to meet an accepted medical standard of care. It is not enough that the healthcare professional makes a simple error or that the patient is unhappy with the treatment provided. In the state of New York, medical malpractice occurs when a doctor or other healthcare professional or institution breaches a standard of care when treating a patient, which results in an injury or death.

A study from Johns Hopkins and published in the BMJ (2016), states that medical errors are the third-leading cause of death in the US. Patient safety experts analyzed medical death rate data over eight years and calculated that over 250,000 deaths per year in the US are due to medical error.

Less than 20 percent of the two hundred thousand victims injured by medical malpractice in the US pursue claims for their injuries. And less than 20 percent of those victims who did file a claim received any compensation for their injuries.

Patients who wish to make a medical malpractice claim must show that:

• A provider/patient relationship existed
• The provider was negligent in his or her duties
• That negligence caused injury
• That injury led to damages

Patients will likely be required to provide medical reports and diagnoses, medical files and other related documents, and physical evidence to support their medical malpractice claims. New York Medical Malpractice lawsuits can be filed for a number of reasons, including:

• Misdiagnosis or failure to diagnose
• Errors during surgery
• Improper medication
• Wrongful death
• Failure to treat, or improper treatment.

  In New York there is no cap or limit on damages awarded a victim of medical malpractice. But there is a “sliding scale” for attorney fees, which stipulates (as per Jud. Law section 474) a cap on the percentage that an attorney can take as a fee in a successful case.

Certificate of Merit: The Plaintiff’s lawyer must file a written certificate of merit (also known as Affidavit of Merit) within 90 days of filing a New York Medical Malpractice lawsuit. This certificate is meant to deter frivolous claims by requiring that claimants show an opinion from a qualified physician stating that the physician has reviewed the plaintiff’s medical records.

New York CPLR section 3012-a requires the certificate to include one option:

• that the lawyer has reviewed the facts of the case and has consulted with at least one licensed physician, and that the lawyer has concluded on the basis of the consultation that there is a reasonable basis for filing a medical malpractice lawsuit, or
• that the lawyer was unable to consult with a physician because the lawyer made three separate attempts with three separate physicians to obtain a consultation and none of the physicians would agree to a consultation

Shared Fault Rules: If you go to trial in New York and are found partially liable for your injuries, your damages award will be reduced due to the state’s “Pure Comparative Negligence” rule. For example, you are found partially negligent, say 20 percent at fault, regarding your illness or injury. If you are awarded $200,000 in damages, the amount would be reduced to $160,000.

Multiple Defendants: If multiple defendants are involved, the “Joint and several liability doctrine” applies. This rule means that multiple defendants are liable for the entirety of the plaintiff’s loss, regardless of each defendants’ degree of fault. For example, if a defendant is only 20 percent at fault, they might have to pay all the plaintiff’s damages if other defendants are unable to do so.

New York Statute of Limitations: Under the New York statutes, a lawsuit for medical malpractice must be filed within two years and six months of the alleged malpractice, or within two years and six months of the last treatment when you have had continuous treatment for the same illness, injury or condition that caused the injury.

If you do not file a medical malpractice lawsuit within this time period, you lose your right to sue, but there are a few exceptions:

• The Discovery Rule gives victims the opportunity to file a claim after the statute of limitations (SOL), if they did not know of a potential medical malpractice case and could not reasonably figure it out. So the state’s Discovery Rule means the SOL begins when the victim knew or had sufficient notice that he/she was harmed, and knew or had sufficient notice of the cause of harm.
   
• The New York SOL for minor children in medical malpractice cases does not apply until the child’s eighteenth birthday, with one exception: it cannot be extended more than ten years after the alleged injury or malpractice occurred or after a foreign object in the patient’s body was discovered or reasonably should have been discovered.

Currently, legislation before New York state lawmakers could significantly alter the statute of limitations. The bill would amend the SOL so that the clock starts when a patient first realizes they were possibly misdiagnosed or harmed by a medical professional — as long as the lawsuit is filed within 10 years of the original incident.

According to the Associated Press (June 2016), Elissa McMahon was told by doctors in 2012 that she had benign uterine fibroids. By 2014 she had advanced uterine cancer that had spread to her liver and spine. She said her new doctors told her the disease should have been caught in 2012 but since it had been almost three years it was too late to file a malpractice suit. McMahon is a leading supporter of the effort to pass the bill.
  In 2013 a cerebral palsy victim received a $130 million judgment after her lawyer, Thomas Moore, refused to settle for $8 million. Moore successfully told a Long Island jury that St. Charles Hospital in Port Jefferson was responsible for mistakes made during delivery that left Shannon Reilly, now aged 10, with cerebral palsy.

An infant sustained brain damage caused by vacuum extraction at birth. A $2 million settlement was obtained on behalf of the infant plaintiff, which is the full amount of the insurance policy that was available from the defendant.

The family of a patient killed after an ER doctor failed to diagnose an aneurysm was awarded $3.4 million in their medical malpractice suit.

A young woman developed sepsis and permanent disfigurement as a result of her surgeon’s failure to timely diagnose an infection (necrotizing fasciitis). She settled for $1,300,000 in Supreme Court, New York County.
 

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Last updated on Apr-27-20