Medical malpractice occurs when a physician, hospital, dentist, or podiatrist in treating a patient departs from good and accepted medical practice, and that departure causes the patient to suffer injuries.
No attorney can tell whether you have a claim for medical malpractice without a thorough investigation of the facts. But all medical malpractice claims have certain legal requirements that potential clients should be aware of.
Do I have a case?
To prevail in a medical malpractice case, the plaintiff, the party bringing the case, has to prove two elements. First, one must prove that the treating physician or provider departed from good and accepted medical practice. Second, one must prove that this departure caused injuries.
Proof must be by a preponderance of the evidence, meaning the evidence on balance must weigh in your favor. This is an easier standard to meet than the “reasonable doubt” standard used in criminal cases.
Determining whether you have a case takes time to investigate. That’s why it’s critical to find out as soon as possible just how much time you have left to bring a lawsuit.
Do I still have time to bring a lawsuit?
New York’s statutes of limitations impose time limits for bringing a lawsuit. If you miss the statute of limitations deadline, you cannot bring a claim even if the facts are on your side. The circumstances of each case must be closely examined to determine the applicable statute of limitations.
In New York, a claim for medical malpractice generally must be brought “within two years and six months of the act, omission or failure complained of.”
If the physician in question has continued to treat the condition that gives rise to the claim, then that time can be extended from the date of the last treatment.
If the claim is based on the discovery in the body of a foreign object, like a surgical sponge, then the time runs from when the object was or should have been discovered, whichever is earlier.
The statute of limitations may also be extended for other circumstances, such as when the injured party is a child. Also, where the treatment has caused death the statute of limitations is generally two years from the date of death.
If your case involves the state or a local government — for example, if the treatment was rendered at a public hospital — then you may face additional deadlines.
Where the State may be liable, you have only ninety days to do one of two things: either start a lawsuit by filing a Claim; or file a Notice of Intention to File A Claim, which allows you to start an action within two years from the treatment complained of.
Where a city or local government may be liable, you have ninety days to file a Notice of Claim. This does not start an action, but filing the Notice lets you start an action within one year and ninety days of the incident.
What happens after a consultation?
The first step in any medical malpractice investigation, even before bringing a lawsuit, is to review the relevant medical records. Complete and accurate copies must be obtained.
We then examine the records and if there appears to be malpractice which caused injury or death, we consult with an appropriate medical expert. After that consultation, if the medical expert agrees, we are able to represent you in connection with the case.
Once a case is begun, there is extensive pretrial discovery. This is where the parties exchange all relevant evidence. The parties will also have to appear for depositions, where they must answer questions under oath. These are usually done in a conference room rather than in court, but the transcripts of such depositions can be evidence at trial. Injured parties also usually have to appear for an examination by a physician hired by the defendants, who are entitled to confirm the injuries claimed.
Pursuing a medical malpractice action always requires retaining expert medical witnesses who can and will support the plaintiff’s claims at trial.
At the end of discovery — which can run a year or more — the parties will get a trial date. That will likely be months away, during which the parties might reach an agreement to settle the case.
While medical malpractice cases may settle before trial, it has been our experience that the best way to achieve a satisfactory settlement for a client is to be fully prepared and ready to proceed to trial.
If you think you may have a medical malpractice claim, contact the DelliCarpini Law Firm for a free consultation. We’ll answer all your questions and determine whether you have a claim. Contact us online or call us at 516.307.8818.