What is needed to present a medical malpractice lawsuit?
In general to prove liability in a medical malpractice case, a plaintiff would need to prove the following:
- The medical provider did not provide the duty of care (level of service) it owed to the patient
- A patient was injured or otherwise significantly harmed as the result of the medical care
- The injury that the patient received was a product of a health care provider's failure to provide the services it owed.
Do I lose my right to a medical malpractice case by signing a consent form?
No. A consent form confirms that a patient acknowledges that every medical procedure carries a certain amount of risks, and that you trust the healthcare provider to address those risks. It does not allow a health care provider to commit malpractice.
How should I begin a medical malpractice claim?
In general two steps are necessary to begin a medical malpractice lawsuit. First, you will undergo an independent medical review from a trained medical professional to determine if your injury was caused by the health care provider. If, from a medical professional’s perspective, there is evidence of malpractice, a lawyer will evaluate the case to determine what legal liability and settlements can be obtained from a medical malpractice lawsuit.
What if it is determined I do not have a very good case?
Determining the value of a medical malpractice lawsuit is a judgment call; made by a lawyer and a medical professional. However not all doctors or lawyers will see the same things, so it is important to get a second opinion if it is determined that your case is not actionable.
What are the specifics of medical malpractice law in New York?
Each state, and even different boroughs like the Bronx, have different guidelines for medical malpractice:
Timeframe
In New York, a medical malpractice case must be filed within two and a half years of the violation, either when improper treatment was received or when a false judgment by a healthcare professional was made. The claim can be made by either the person experiencing the injury or by his estate. Since medical malpractice cases often result in the incapacitation or death of a patient, the estate will often play a large role in a medical malpractice case.
Settlements and Damages
Unlike some states, New York State does not provide a cap on the damages (money) you can collect. New York also determines settlements of medical malpractice cases using a purely "comparative negligence" basis. That means that the money given in the settlement of a malpractice lawsuit is determined by the precedent of similar cases in the past.
Liability
In New York, hospitals are liable for any malpractice committed by one of their employees. However, if a person receives improper treatment in a hospital by an outside healthcare provider, the hospital would not be liable. If the hospital uses an independent contractor to provide the care that resulted in malpractice, the hospital may be held liable as well.
Medical Evaluation
Within 90 days of filing a malpractice claim, New York State requires plaintiffs to undergo a medical evaluation if they have not done so already.
Immunity
New York State has waived its immunity to medical malpractice charges, which includes all of various divisions and departments.
What are some common defenses against medical malpractice lawsuits
Lawyers of Medical Malpractice defendants will generally invoke the following claims:
- The treatment the defendant received was not improper, according to their own medical evaluation
- The injury at the source of a medical malpractice claim was obtained by another source
- The alternative treatment that could have been provided was not available
- That the waiver included the risks that were inherent in your medical malpractice claim
Medical malpractice cases can produce a significant emotional toll on the victims and his or her loved ones, so it is important to provide a detailed and complete summary of the facts of your case.
