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When you have a medical procedure performed on an outpatient basis or you receive care in the hospital, you take it for granted that the doctors, nurses, and other medical staff treating you will perform the procedure correctly. Unfortunately, serious medical errors are common and can cause lifelong injuries or even the death of a patient. The death might be immediate or the patient may pass away much sooner than he or she would have otherwise.

Injuries can be serious enough to leave a patient with permanent disfigurement, paralysis, traumatic brain injury, and a host of other serious medical problems that dramatically impact his or her quality of life. It can be shocking for the patient and leave him or her not knowing where to turn to deal with the devastating consequences of medical malpractice. Part of the oath of all medical providers includes acting in a manner consistent with professional standards. You may have a valid claim of medical malpractice when this does not occur and the provider harms rather than helps you.

Medical errors are the third-leading cause of death behind cancer and heart disease, according to a 2016 medical malpractice report released by Johns Hopkins University. The report states that at least 250,000 patients die every year due to a serious error by a medical practitioner. However, Johns Hopkins acknowledges that the annual death rate from medical error may be as high as 440,000 people. The number of people who sustain serious and life-altering injuries due to medical error is significantly higher than those who die.

If you feel that you or a close family member has been the victim of negligent care by a medical provider, you have the right to hire a New York medical malpractice lawyer to represent you. Your lawyer will help you gather evidence to prove negligence on the part of your treating provider. However, you must do so before the statute of limitations for medical malpractice claims in New York expires. We will discuss the time frames and exceptions allowed to the statute of limitations later in this article.

It is imperative to establish your legal team as early as possible since the person or organization you intend to sue will likely have access to greater financial resources than you do. You can expect them to start working to disprove your claim if they even suspect that you may file a lawsuit. The longer you wait to file a claim, the more time you provide them to fight against it.

Six Common Types of Medical Malpractice Claims

Medical errors can include more than just making a mistake when treating a patient. The failure to diagnose or recommend the proper course of treatment are examples of error by omission that can also have serious consequences on a patient’s life. Here are six of the most common types of cases that cause injured patients to seek the services of a New York medical malpractice lawyer:

Birth injuries, also known as gynecological or obstetric injuries:

We take it for granted in 21st century America that the birth process will be safe for the mother and baby. Sadly, many things can go wrong that can leave both with lifelong health issues or the newborn with developmental issues. While these are not always the fault of the attending physicians, medical errors during birth have devastating consequences when they do occur. Some of the most common types of birth-related medical malpractice claims are related to the following:

  • Excessively prolonged labor that injures the mother, baby, or both
  • Excessive vaginal bleeding, with or without hemorrhaging
  • Failure to administer anesthesia properly during a vaginal birth or Caesarian section
  • Gestational diabetes of the mother that was improperly monitored and caused avoidable complications
  • Nerve injury, shoulder dystocia, or another injury to the baby during the birth process
  • Placental abruption or placenta previa
  • Prematurity due to medical errors
  • Surgical error during a Caesarian section

Delayed Diagnosis

A delayed diagnosis medical malpractice case means that the patient received an incorrect diagnosis initially but eventually received the correct diagnosis. If you have experienced this, you know that the time lost to an incorrect diagnosis can have a significant health outcome or even lead to premature death. In determining medical malpractice, juries consider whether the original diagnosing doctor assessed the patient in a less competent manner than doctors with similar training and experience would do. He or she may have also failed to see signs of disease on a diagnostic imaging test.

Failure to Treat

Doctors in this situation initially diagnose a patient correctly but then fail to provide or recommend the appropriate follow-up care. This is most common when a doctor has too many patients on his or her caseload and does not provide the level of individual care necessary for a good health outcome.

Medical Product Liability

This category is a good example of how medical errors do not always occur due to direct care or failure to diagnose or treat a patient properly. They can also happen when a medical device manufacturing company creates and sells a faulty product that harms a patient. For example, a pacemaker meant to stimulate electrical heart activity could fail to perform and the patient suffers a heart attack as a result.

Misdiagnosis

Misdiagnosis is one of the most common types of medical malpractice claims. This occurs when a doctor examines a patient and gives him or her the wrong diagnosis or no diagnosis at all. In a worst-case scenario, a patient given medication or other treatment for a condition that he or she does not have can develop a worsening of the original condition.

Surgical Errors

Unfortunately, even a simple surgical procedure can go wrong and impact a patient for the rest of his or her life. The following represent some of the most common types of surgical errors that may qualify as medical malpractice:

  • Administering anesthesia improperly or giving a patient the wrong amount
  • Causing an infection to the patient by using surgical instruments that have not been properly sterilized
  • Causing damage to a patient’s nerves, organs, or tissues during the surgical procedure
  • Failing to provide proper post-surgical care to the patient
  • Leaving a surgical instrument inside of the patient’s body
  • Operating on the wrong part of the body
  • Performing the wrong type of surgery on the patient

While the above six categories represent the most common types of medical malpractice claims in New York, they are far from the only things that can go wrong. A doctor writing a prescription for the wrong drug, a pharmacist issuing the wrong drug or failing to counsel the patient on possible interactions with other medications, plastic surgery errors, and the production of faulty medical devices are also common.

You have the right to retain a New York medical malpractice lawyer to seek financial compensation for any type of injury that you reasonably feel happened due to negligence, whether you see it on this list or not. A successful lawsuit can provide you with money to pay your medical expenses, reimburse your lost wages, acknowledge your pain and suffering, and much more. Even though money cannot change the situation you now live with due to medical error, it can at least help to provide for you and your family.

Requirements for Medical Malpractice Lawsuits in New York

When you file a medical malpractice case in New York, the burden of proof is on you to show a direct relationship between the actions of the defendant and your injuries. These can be among some of the most challenging personal injury cases and require the assistance of a New York medical malpractice attorney to help you prove your claim and fight for fair compensation. It would be extremely difficult for you to gather proof and go up against a large medical corporation, its insurance company, and its lawyers on your own.

Before moving forward with your lawsuit, it is important to understand the definition of medical malpractice and the four elements you must prove for a judge to consider your case and for you to have a higher likelihood of winning it. According to the United States National Library of Medicine and National Institutes of Health:

Medical malpractice occurs when a physician deviates from the established and accepted protocols of the medical community. This causes him or her to treat the patient incorrectly or to fail to treat the patient at all. Doctors, nurses, pharmacists, diagnostic imaging technicians, doctors who read test results, ambulance attendants, and manufacturing companies are just some of the many parties who could potentially commit medical malpractice.

It is possible that you may need to file your lawsuit against more than one party. You may also need to work with a New York medical malpractice lawyer to determine which parties you need to sue.

When you file your claim, it must meet all four of the following criteria to earn the legal definition of medical malpractice:

  • Duty of care: This means that the person or organization that you are accusing of medical malpractice had the legal and moral obligation to treat your medical issue. Fortunately, it is easy for you to establish that a doctor and patient relationship existed at the time of the negligent act.
  • Breach of care: After establishing a duty of care, you need to prove that the care you received failed to meet what the medical community considers an acceptable standard of care. Juries focus heavily on the level of care that a medical provider with similar training and experience would provide in the same or a similar situation to determine whether a breach of care took place. Those arguing for and against the beach typically rely on the use of expert testimony to help prove their case.
  • Cause and effect relationship: For the third step, you need to prove that the failure of the medical provider to provide a duty owed to you caused an injury.
  • Damage: Lastly, you and your attorney need to demonstrate that the act of medical malpractice directly caused the medical complications that you experienced after the procedure or that you continue to experience. You can expect the attorney for the defendant to argue that you somehow caused the injuries yourself or that you are exaggerating their severity.

Deadlines and Exceptions for Filing a New York Personal Injury Claim

Each state, including New York, establishes its own statute of limitations for when an injured person can file a medical malpractice or other types of a personal injury lawsuit. The general guideline is that you have 30 months from the date of the injury to file your claim against the medical provider. If the medical error occurred during the course of treatment, the 30 months does not start counting down until after the patient has completed the prescribed course of treatment. Some exceptions exist to this rule, including the following:

  • Discovery rule: State law recognizes that the relationship between medical treatment and subsequent symptoms is not always obvious to patients. However, it only allows an exception to the 30-month rule in surgical cases when the patient discovers that the surgeon left an instrument inside of his or her body. The rule here is that the patient has 12 months from the date of discovery, rather than the date of the surgery, to initiate a medical malpractice lawsuit.
  • Minor children statute of limitations exception: If a child is the victim of medical malpractice, the deadline for filing a claim against the provider does not start until he or she turns 18. However, the statute of limitations cannot go beyond 10 years after the date of the malpractice. That means parents must file on behalf of younger children or risk missing the filing deadline.

Unfortunately, you lose your right to file a medical malpractice claim in New York if you miss the deadline that applies to your specific situation.

Recovering Compensation for Medical Negligence

New York state law provides two types of compensation for patients who successfully win their medical malpractice case. These are economic damages and non-economic damages. Compensation in the first category refers to reimbursement for actual financial losses such as medical expenses and lost wages. These are straightforward and your New York medical malpractice lawyer will help you determine them.

Non-economic damages, which includes such categories as pain and suffering, are much more subjective. The jury assigns a dollar amount based on how well you and your attorney make a case for how the medical error has affected you in a non-monetary way. An injured patient may also be eligible for punitive damages if he or she can prove that the defendant acted in an especially dangerous manner that showed little to no regard for his or her safety and medical outcome.

Below are the most common types of economic damages awarded in medical malpractice cases:

  • Reimbursement of medical expenses and award for anticipated future medical expenses: This would cover actual costs for the additional medical care you needed due to the error, including surgery, medication, physical therapy, and modifications to your home.  You need to prove that the costs you incurred were medically necessary to treat the symptoms caused by medical error. If you expect to need ongoing care due to the medical malpractice, your lawyer will likely call an expert witness to testify to this fact and help to estimate the anticipated costs. These would then be added to the total amount you receive for economic damages.
  • Reimbursement of lost wages: If you had to miss work due to the negligent actions of the defendant in your medical malpractice case, you are entitled to receive the equivalent of your back wages. This is true even if you received reimbursement by using your own vacation, sick, or short-term disability benefits. As with medical costs, you must prove that the defendant’s actions were the direct cause of your time away from work.
  • Loss of future earning capacity: Some medical errors are so serious that the injured patient cannot work again or must work at a much less demanding job than the one he or she held prior to the error. You may be eligible to request this category of compensation in your medical malpractice lawsuit if you now work part-time, have adjusted duties due to your injury or disability, or had to change your line of work entirely to something that pays less because it is all that you have the stamina to tolerate.

The following are common examples of non-economic damages that a jury may award to you:

  • Loss of enjoyment of life: Most people have hobbies they enjoy, such as photography, travel, or getting together frequently with friends. If you can no longer do some or all of the things that bring you pleasure, then you have a legitimate reason to ask for damages related to loss of enjoyment of life. However, you must prove that the medical error alone is responsible to your reduced life quality.
  • Loss of consortium: This refers to the inability to maintain a physically and emotionally intimate relationship with your spouse or significant other. It can also describe a general loss of companionship as you once knew it. It is highly personal and up to you if you want your New York medical malpractice lawyer to fight for this type of compensation.
  • Pain and suffering: This includes both physical pain and emotional difficulties that you continue to deal with due to the medical provider’s negligent actions. For example, the jury would award you a higher payout for pain and suffering if you live with significant pain every day than it would if you only occasionally experience a flare-up. Emotional pain can refer to such things as depression and anxiety from the new circumstances in your life and post-traumatic stress disorder where you deal with nightmares, intrusive thoughts, avoidance of certain people or situations, and occasionally difficulty distinguishing what is and what is not real because of the trauma of the medical error.

It is rare but not unheard of for an injured patient to receive punitive damages in New York. Juries consider whether the actions of the defendant qualify as morally reprehensible and not simply reckless when choosing this category of financial compensation. Its intent is not so much to award the patient but to punish the defendant in the medical malpractice case and send a message to others who might consider engaging in the same type of unprofessional behavior.

Before you can collect any type of compensation from your lawsuit, you and your New York medical malpractice lawyer must prove that the damages you suffered have a financial equivalent and that there is no other way to remedy the situation. This is in addition to the four criteria that the two of you must establish for a judge to consider your case legitimate medical malpractice.

You should also be aware that certain factors in your case can reduce the amount of compensation you receive should you win your lawsuit or cause you to lose your case. One of these is whether you had a pre-existing condition that became aggravated by the defendant’s error and is not an entirely new medical symptom or condition. Another is the matter of your own fault in causing the injury or symptoms or making them worse by your actions. You could lose some or all compensation here if the lawyer for the other party can prove that you went against medical advice or were negligent yourself and that is what caused your current complications.

New York Medical Malpractice Damage Cap

A medical malpractice damage cap is a limit on the amount of compensation that a plaintiff can receive in a successful medical malpractice lawsuit. Typically, this only affects non-economic damages such as those described above. State laws do not place a cap on actual financial losses like medical expenses and lost wages. The good news for medically injured New York residents is that our state is just one of 15 that does not place any limits on non-economic damages in a medical malpractice case.

Advising and Representing Families and Children Injured by Medical Negligence

Medical malpractice issues are often complex and emotionally painful. The New York medical malpractice lawyers at Jacob Fuchsberg Law Firm have generations of experience handling these very sensitive matters. Our malpractice attorneys have worked on hundreds of different medical malpractice actions, including cases related to:

  • Birth injuries and covering the exorbitant cost of care for the child’s future needs
  • Hospital errors
  • Prescription errors
  • Heart surgeries such as bypass procedures and valve replacements
  • Ophthalmologic conditions involving glaucoma or infection as well as cataract and Lasik procedures
  • Liver transplant surgeries to both donor and recipient
  • Pancreatic, colorectal and gallbladder surgeries
  • Orthopedic surgeries involving spinal fusion, hip, shoulder and knee replacement
  • Orthopedic conditions, including timely diagnosis of cauda equine syndrome and treatment for Chiari 1 Malformation.
  • Neurosurgery to the brain, including the timely and appropriate clipping of aneurysms and performance of a craniotomy
  • Improper use of power morcellators on fibroids leading to cancer
  • Plastic surgery
  • Delay or misdiagnosis of illnesses such as cancer, heart disease, meningitis, sepsis, and other infections
  • Emergency room and doctor negligence, including improper work-up of stroke and discharge
  • Product liability cases due to dangerous drugs and medical devices

When Doctors and Hospitals Make Mistakes

It can be sad and frustrating to realize that highly trained doctors and hospitals make mistakes that permanently alter the lives of some of their patients — and cost other patients their lives. Faulty, negligent medical care underlies many of the cases handled by the New York medical malpractice attorneys at the Jacob Fuchsberg Law Firm.

If you are struggling with a serious injury that could have been prevented with proper care, or you are coping with the loss of a family member, talk to us. Our long history of obtaining outstanding verdicts and settlements in cases involving medical malpractice attests to our wealth of experience and dedication to our clients.

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Contact us to get your questions answered. The consultation is free. We can answer your questions and help you decide what steps to take next. There are no fees unless and until we recover compensation for you and your family.

Based in New York City, our New York medical malpractice attorneys work with individuals and families of those injured in New York, New Jersey, and Connecticut. We invite you to learn more about why clients choose us. To speak with one of the top-rated medical malpractice lawyers in New York City, call (212) 869-3500 or complete the free case evaluation form below.

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