FAQ: General Personal Injury & Medical Malpractice

Medical Malpractice FAQ

1. What is medical malpractice?

Medical malpractice occurs when a medical provider deviates from accepted medical standards and that deviation causes injury to a person. In essence, they are errors that could and should have been prevented.

2. How do you determine if you have a case of medical malpractice?

To determine if you have a case, a medical professional needs to review your records to determine if the case is meritorious. In New York State, one cannot commence a lawsuit against a medical provider unless a medical expert determines there was a deviation from generally accepted practice. To avoid any conflicts, our experts are all outside of this local area and they will give us completely objective opinions as to whether you have a case. The purpose of this law is to prevent frivolous claims from being filed and it has been very successful.

3. How long do you have to bring a medical malpractice lawsuit?

The statute of limitations (explained farther down) depends on the basis for the lawsuit and who the parties are. You should speak to an attorney immediately if you do not know your statute of limitations.

4. Will my case go to trial?

Whether or not a case goes to trial or settles is unique to each case. The question should not be whether the case will settle but rather does the proposed settlement adequately compensate the injured party or the decedent's survivors. However, on average 50% of medical malpractice cases settle before verdict.

Other Legal FAQ

What do I need to know about the "Statute of Limitations?"

The most important thing to remember about all personal injury cases is that there is a statute of limitations. If one does not file suit before the statute of limitations expires, they will be barred from bringing a claim.

What your statute of limitations is differs depending on how the injury occurred and who the parties are. For example, in general, the statute of limitations for an automobile accident is 3 years. However, that statute could change depending on who the opposing party is. The statute of limitations for medical malpractice matters are shorter than most other personal injuries with a variety of limited exceptions such as when the continuous treatment doctrine is applicable, the discovery of certain foreign objects left during surgery, and who the negligent party is. The age of the injured party also plays a factor in determining how much time one has since the law affords children additional time to bring a claim due to their age.

Cases against certain municipalities require the filing of a Notice of Claim or other claim forms some as early as within 90 days of the incident. Even certain federally funded institutions are sheltered by a shorter statute of limitations than the average personal injury case.

Because of the broad array of statute of limitations, it is imperative that one speaks to an attorney as soon as possible to ensure their rights are protected.

How are attorney fees calculated?

Attorney's fees for personal injury cases are paid on a contingency fee basis. This means that unless financial compensation is recovered for you, you are not responsible for attorney's fees. For most personal injuries cases fees are 1/3 of the net recovery. Fees for medical malpractice cases are on a sliding scale and start at 30% and go down to 10% based on the amount recovered. Federal court cases place attorney compensation at 25% of the net recovery.

Medical Malpractice Statistics

("To Err is Human" published by National Academy Press)

Most people are not familiar with the statistics pertaining to "preventable errors" caused while receiving medical care. One of the reasons for this is that when a medical malpractice case is settled it is always a confidential settlement. The terms of the confidential settlements are usually that the medical provider does not admit any error was committed, however, their insurance carrier pays financial compensation for the injury under the condition that the injured party does not publicly discuss the case.

Preventable medical errors are one of the leading causes of death and injury in the United States. There are many reasons why these preventable errors occur. Sometimes medical providers are rushed and they miss critical medical information or they fail to make a timely diagnosis. Other times medical providers fail to adequately supervise those under them thereby causing injury - the list goes on. We are all human and mistakes do happen. However, medical providers should be held responsible for "preventable errors" not only because the injury should not have occurred but also to ensure mistakes are not repeated.

A study was conducted on the issue of preventable errors in the book "To Err Is Human". Some of those statistical results are as follows:

1. Medical malpractice is one of the leading causes of death and injury in the United States with up to 98,000 people dying each year.

2. An estimated 7,000 people die annually due to medication errors.

3. 5% of physicians cause 56% of all the medical malpractice.

4. The amount of medical malpractice claims has been stagnant.

5. New York requires attorneys to have all medical malpractice cases reviewed by a physician prior to filing suit to ensure the case is meritorious.

There has also been debate regarding medical professional liability insurance premiums. First it should be noted that professional liability insurance premiums only account for approximately 1% of all healthcare costs. Second, studies conducted in New York show that medical malpractice lawsuits have been stagnant for over 20 years. Third, although insurance carriers claim medical malpractice claims are increasing costs, there is a history of insurance carriers acquiring others for hundreds of millions of dollars in cash and furthermore refunds have been provided to their insured medical providers.

Personal Injury FAQ's

What is negligence?

Negligence, in the context of a personal injury action, can be defined as doing something that a reasonable person would not have done, or the failure to do something that a reasonable person would have done. Those who cause injuries to others through their negligence may be held responsible for either their action or inaction in a personal injury lawsuit.

What is wrongful death?

A wrongful death is a death caused by a wrongful or negligent act and can occur in the context of a personal injury or medical malpractice lawsuit. Wrongful death actions are sought against those responsible for the victim's death. The difference between a wrongful death action and a negligence action lies in the fact that a wrongful death action is brought by the victim's survivors, and damages may include lost income, as well as the loss of the benefits of a family relationship due to the victim's death.

What is pain and suffering?

Pain and suffering is compensation that is meant to provide money for non-economic damages. Pain and suffering damages may include loss of limb, scarring, depression, anxiety, and ongoing pain resulting from bone, muscle, or nerve injury. Compensation for pain and suffering is not limited to present pain and suffering, as you may be able to recover for past and future pain and suffering as well.

What are economic damages?

Loss of income, loss of employment, inability to perform employment, and loss of employment benefits (such as a pension or health insurance coverage) are all examples of economic damages. Like pain and suffering, economic damages may include past, present, and future economic losses. Economic damages can further include costs associated with future medical care and rehabilitation.

What are punitive damages?

Punitive damages are awarded where a person's conduct warrants punishment in the form of a monetary award to the individual bringing the lawsuit. The aim of punitive damages is not to compensate for a loss, but to deter bad conduct. For someone to be entitled to punitive damages, the bad conduct must rise to a level as recklessness or gross negligence.