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Medical Malpractice FAQs

What is medical malpractice?

Medical malpractice occurs when a health care provider causes injury or death to a patient by failing to act within the applicable “standard of care”. In other words, a physician or other health care provider commits medical malpractice and is negligent when he or she fails to act reasonably under the circumstances and that unreasonable conduct causes harm.

What is the New York standard for medical malpractice?

In determining whether a medical practitioner made a mistake, the court will consider what reasonable, prudent medical practitioners would have done in the same situation. If the medical practitioners did not meet that standard, they could be found negligent.

  • In NY, the legal standard applied to malpractice claims is whether the doctor departed from the accepted standard of medical care in either “doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice.” (NY Pattern Jury Instructions 2:150).
  • Dr’s are not liable just because the patient ended up with a bad result, unless it can be proven that the bad result was caused by the Dr’s negligence.
  • Dr’s are also not liable for exercising medical judgment by choosing from accepted treatment alternatives. In other words, if there are three accepted ways of treating a particular condition and the Dr chooses treatment method #1 rather than #2 or 3, he or she is not negligent even if in hindsight it could be said that option #2 or 3 may have been a more effective treatment. Where a Dr may be negligent is when he or she chose an unaccepted method of treatment or failed to perform appropriate diagnostic tests to make the decision as to the best method of treatment.
  • Please appreciate that the burden of proving that the Dr. departed from the accepting standard of care is upon you as the party bringing the lawsuit. In other words, if a jury was to find that the Dr’s version of the case was as equally persuasive as your version of the case, then you would lose because you did not sustain the burden of proving that your version was more likely correct.
  • Please understand that the costs of pursuing a malpractice case are HUGE! It is not unusual that costs exceed $20,000 to $30,000 (We had one case where we advanced costs of $85,000) so we can only accept those cases where there is a good likliehood of success AND where we believe the jury would return a very substantial verdict. As we are sure you can appreciate, it doesn’t make sense to bring a case where the costs are $30,000 and the jury returns a verdict for $20,000. Accordingly, we only take medical malpractice cases where our clients have suffered very significant, permanent injuries.
  • And finally, please understand that in NY, the statewide statistic is that patients bringing medical malpractice claims lose 70% of the cases. Fortunately, our own success rate is MUCH better than that which we attribute to being very analytical about the cases we will accept or reject.

Can you give me some examples of medical malpractice?

Many different mistakes may constitute medical malpractice including:

  • You were not fully informed of the risks before your treatment,
  • Your medical providers did not determine the proper diagnosis of your condition,
  • Your medical providers did not perform appropriate diagnostic testing,
  • Your medical providers did not properly treat your condition,
  • Your medical providers did not perform the operation properly, or
  • Your medical providers did not anticipate a problem which they should have.
These are just a few examples of the MANY types of medical mistakes that might constitute medical malpractice. If you are not sure whether your circumstances rise to the level of medical malpractice, feel free to send a detailed E-mail regarding your circumstances to [email protected] and we will quickly let you know whether we think you might have a claim or not. There is no charge for this evaluation.

What is a “medication error”?

A medication error is defined as “… any preventable event that may cause or lead to inappropriate medication use or patient harm, while the medication is in the control of the health care professional, patient, or consumer.” Such events may be related to professional practice, health care products, procedures, and systems including: prescribing; order communication; product labeling, packaging and nomenclature; compounding; dispensing; distribution; administration; education; monitoring; and use. Common types of medication error cases that have been successfully handled by the Ziff Law Firm include:

  • Giving a patient the wrong medication.
  • Giving a patient an incorrect dosage of a medication.
  • Giving a patient a medication that conflicts with another medication the patient is taking.
  • Mislabeling a patient’s medication.

What if I have been given a medication that has bad side effects that I was not warned about?

Your doctor and/or pharmacist have an obligation to warn you about potential side effects of a medication they are prescribing for you. This warning may be in the form of verbal and/or written instructions. Another type of medication problem that may give rise to a claim is a medication that causes side effects that the manufacturer did not warn the patient about. A most recent example of this is Vioxx, an arthritis medication which has been recently pulled from the market because it causes heart injuries and strokes which were not disclosed to the patients who were prescribed this medication. Attorney Jim Reed from the Ziff Law Firm is currently handling several cases for local persons who suffered heart injuries as a result of taking Vioxx.

How do you prove that a doctor or other medical provider departed from the “accepted standard of medical care”?

A jury will consider testimony by experts — usually other doctors, who will testify whether they believe your physician’s actions followed standard medical practice or fell below the accepted standard of care. In deciding whether your heart surgeon was negligent, for example, a jury will rely on expert testimony to determine what a competent heart surgeon would have done under the same or similar circumstances.

What is “informed consent” & what is my doctor required to tell me before surgery?

Under NY law, a Dr. is required to advise you of the risks of any planned surgery and the various alternatives that may be available other than the particular type of surgery they are recommending for you. This is called “informed consent” and it means that you are supposed to be provided with all the information necessary for you to make an informed decision about whether you have the surgery or not. It is common practice in hospitals for patients to sign a form giving the doctor their consent, or approval, to perform surgery. In the form, the patient usually consents to the specific surgery as well as to any other procedures that might become necessary. Before you sign it, your doctor should give you a full description of the surgery and the risks involved, and the ramifications of not getting such treatment. If you can prove that your physician misrepresented or failed to adequately inform you of the risks and benefits before surgery, your consent may be invalid.

What should I do if I am not sure whether I have a medical malpractice case or not?

You are going to need to talk to an experienced medical malpractice lawyer. Medical malpractice law is a highly-specialized, very difficult area of law so make sure you speak with an attorney who has prior experience in the medical malpractice field. Below are some tips on identifying the RIGHT lawyer for you to speak with. Before talking to any lawyer who just happens to advertise that they handle medical malpractice cases, check the lawyer and the law firm out! I hate to say it, but many lawyers who advertise for medical malpractice cases do NOT actually handle this cases themselves and they are just looking to see if you have a case so that they can refer it to another law firm who will actually handle the case. These lawyers are just looking for a referral fee for sending your case to the other firm. While there is nothing unethical about these referral fees, most times you are much better off if you talk to the experienced firm in the first place thereby cutting out the “middle man”. How do you determine whether the law firm actually handles medical malpractice cases? The easiest way to tell is to look at the firm’s website to see if they have any posted success stories for handling past cases. For instance, on our website, you can check out Our Results page and you will quickly see the large number of NY and PA medical malpractice cases we have successfully handled. While it may be true that past results do not guarantee future success, a long track record of successes suggests that a lawyer and their firm has a wealth of past experience to draw on in handling YOUR case.

What types of information will the lawyer need to evaluate my case?

It is imperative that you be honest and tell your lawyer EVERYTHING. There is nothing that kills any case faster than a “simple” lie or a failure to share ALL relevant information with your lawyer. If you have any doubt that any piece of information will be important for your lawyer to know, ALWAYS err on the side of telling your lawyer. I would much rather know too much than not enough. Your attorney will ask you many questions about your care so even before you meet with any attorney it is a good idea to sit down and write out as much as you can recall about your care. Try to put your notes in chronological order from beginning to end. If you know exact dates and times, put them down. If you have to estimate dates, that is OK but try to put the events in the order they occurred. Start by telling the attorney about your prior health history and then progress to telling exactly what happened to you, from the first time you visited your doctor through your last contact. What were the circumstances surrounding your illness or injury? How did your doctor treat it? What did your doctor tell you about your treatment? Did you follow your doctor’s instructions? What happened to you? How are you doing know? Do you have any permanent injuries or limitations? How much time did you lose from work? Who paid your medical bills? Answers to these and many other relevant questions become important if you think your doctor may have committed malpractice. If you are not sure whether your circumstances rise to the level of medical malpractice, feel free to send a detailed E-mail regarding your circumstances to [email protected] and we will quickly and confidentially let you know whether we think you might have a claim or not. There is no charge for this evaluation.

I had a bad result medically. Does than mean I have a good malpractice case?

Not necessarily. In general, there are no guarantees of medical results. Just because you have a bad result does NOT mean that there was malpractice or medical negligence. To have a good malpractice claim, we have the burden of proving that your injury or damages was caused by the doctor’s deviation from the appropriate standard of care for your condition. This is the degree of care and skill that the average qualified doctor would provide to a patient who sought medical care for similar symptoms and circumstances. We can help you to determine if your case has merit. Many mistakes are simply that, but if your doctor’s mistake was the result of negligence or failure to meet the expected standard of care, then the answer may be “Yes”. To find out for sure, feel free to send a detailed E-mail regarding your circumstances to[email protected] and we will quickly let you know whether we think you might have a claim or not. There is no charge for this evaluation.

I have no money to hire an attorney, how do I find an attorney who can help me?

Luckily, our firm handles malpractice cases on what is called a “contingency fee” basis. This means that you do not pay us on an hourly basis to handle your case. Instead, we get paid a percentage (usually 33% or one-third) of the amount we recover on your behalf. You can read more detail about this on the FAQ titled “How Are Attorney’s Fees Calculated”.

How are attorney’s fees calculated?

In New York, attorney’s fees in medical malpractice cases may be calculated in one of two different ways:

  • A “sliding scale” percentage, or,
  • A straight percentage (ie 33%) as agreed by the parties.

THE SLIDING SCALE PERCENTAGE

In New York, by a special law pushed through by the very powerful medical lobbyists that applies only to medical malpractice actions, the attorney’s fee may be less than in a standard “negligence” action. This statute provides protections to Dr’s that are NOT provided to any other profession. This statute imposes a lower attorney’s fee percentage on medical malpractice case than is imposed on any other type of professional malpractice case like legal malpractice or accounting malpractice. In other words, if a lawyer, or an accountant, or an architect, or any other professional screws up and causes damage to a person, an attorney representing that person gets paid a higher fee than if a Dr screwed up. Why is that? Simple. The medical lobby wanted to discourage lawsuits against Dr’s so they pushed through a special law that protects Dr’s by cutting attorneys fees. The thinking was that if attorneys got paid less, many attorneys would stop handling these cases. And it worked. Many attorneys have abandoned this area of practice. Even worse, many times those attorneys who continue to handle these cases have to decline cases where there is clear negligence but the recovery will just not be sufficient to justify all of the work involved and the very high costs of pursuing the case. So what are the fees under the “sliding scale”? In a standard negligence action, the attorney’s fee is 1/3 (33%) of the remaining amount after expenses (called “disbursements”) are deducted off the top. However, in a medical malpractice matter, the lawyer’s fee is generally set by law in the form of a sliding scale. It starts out at 30% on the first $250,000, then 25% on the next $250,000, then 20%, and it keeps going down until it is only 10% on any recovery over $1,250,000. While this “sliding scale” sounds good because it means that the attorney’s fee is less than the attorney fee that would be paid under the straight one-third contingency fee, it is NOT good for the client when it means that an attorney decides that it is not economically feasible for them to handle the case and they end up rejecting the client’s case. Unfortunately, like any other business, lawyers must make a decision about whether it makes good business sense to take a case or not. A lawyer simply cannot take those cases where the degree of difficulty and the costs are so high unless the compensation is sufficient to compensate the lawyer for the time and risk he is taking. Accordingly, in some circumstances, your lawyer can discuss with you the possibility of your voluntarily agreeing to have the attorney’s fees in your case calculated on a straight one-third (33%) contingency fee as is normally charged in any other kind of professional malpractice case.

STRAIGHT ONE THIRD (33%) CONTINGENCY FEE

If you agree, your attorney can handle your medical malpractice case on a straight one-third (33%) contingency fee basis. This means that after the lawsuit expenses are deducted off the top, you receive 2/3rds (66.7%)of the settlement and your attorney receives 1/3rd (33.3%).

If I win my medical malpractice case, do I have to pay income taxes on the money I receive?

Generally not. With very limited exceptions, proceeds from a personal injury or medical malpractice action arenot taxable. In both New York and Pennsylvania where we commonly represent injury and malpractice victims, compensation for your injuries is tax free. It’s bad enough being injured, and then having to bring a lawsuit to obtain proper compensation and payments for your disabilities. Can you imagine the impact it would have if you then had to pay income taxes on those monies? Luckily, the government realized that injury settlements are not earned income. Rather, they compensate an injured victim for the pain, suffering, and disabilities they suffered at the hands of another’s carelessness. Just because the proceeds are not taxable, does not mean that they are not reportable. IRS rules require you to report the receipt of personal injury proceeds even though than money is not taxable. Upon settlement of your case, you will receive notification from the insurance company that paid you compensation with documentation about your settlement. You need to give that letter to your accountant or tax preparer so they can properly report the proceeds on your tax return. When you invest those monies into taxable investments, then any profit or gain you achieve is obviously taxable. As you might expect, there are exceptions to every general rule. While most proceeds are not taxable, under certain circumstances, proceeds are taxable. For instance, in a death case, an award for pain and suffering is generally taxable to the estate. In some instances there are legal ways to allocate the monies to the wrongful death cause of action (which is not taxable to the estate) rather than the pain and suffering cause of action (which is taxable to the estate). As you can tell from reading this, the whole issue of taxation can get ticklish but any experienced injury or malpractice lawyer should be able to help you navigate these issues.

Jane Doe, a phlebotomist (blood drawer), drew a blood sample from Glen Ross, a 30 year old married patient of Dr. Williams, to test for AIDS. As Glen was leaving the office, his friend Harry came in and they greeted each other. Jessica took Harry into an exam room and during their conversation, Harry told Jane that he was a good friend of Glen’s. He asked Jane why Glenn was seeing the doctor. Jane answered that it was just for a routine test for AIDS When Harry arrived back home, he called Glenn and told him what Jane had said. Glenn called Dr. Williams and complained about Jane’s action and said he planned to sue Dr. Williams. Dr. Williams fired Jessica. How could a jury find Dr. Williams liable to Glen? After all, Dr. Williams had nothing to do with this mess!

Great question and I sure don’t want to be evasive but there are WAY too many variables involved in trying to answer a complex hypothetical like this that it would not be responsible for me to try to answer the question. Variables include: what state are we talking about (I am only admitted to practice in NY and PA so I couldn’t possibly comment on the law of any other state)?; Is Jane a direct employee of Dr William’s, an independent contractor, or employed by some other entity?; Is Jessica a direct employee of the Dr, an independent contractor, or employed by someone else? These are just a few of the questions off the top of my head and I know if I spent more time thinking about it, there would be a lot more questions I would need to ask before I could give you an informed answer. This makes an important point about all cases but medical malpractice cases in particular: it is often impossible to give a definitive answer to a question until you have ALL the information. This is why I spend hour upon hour meeting with people, getting records, doing legal and medical research, gathering information, BEFORE I can tell people whether they have a case or not. I am happy to give answers but I can only do so when I have all the information I need. Thanks for your question!

I had an injury to my leg. The Emergency Dr had xrays done and even though part of the complaint was my knee, there were serious cuts on my leg. The Dr didn’t order an MRI to look further into the knee. After 3.5 months, I was referred to an Orthopedic Surgeon, by my Chiropractor, who found that there was a tear in the tendon. Should the Emergency Dr had ordered an MRI as well as Xrays?

In NY, the standard applied to malpractice claims is whether the doctor departed from the accepted standard of medical care in either “doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances. It is a deviation or departure from accepted practice.” (NY Pattern Jury Instructions 2:150). So the question in your case becomes: Was it a departure from the accepted standard of ER care for the Dr. to fail to order an MRI? This is a question only a duly qualified medical expert can definitively answer. Unfortunately, to get that kind of answer often is expensive because you have to get all your records and then have them reviewed by an expert. That can typically cost $3,000-$5,000. Most people can’t afford that kind of review so often experienced medical malpractice lawyers like myself will attempt to at least preliminarily get a less expensive evaluation of the case. We do so based on our past experience (I have been doing medical negligence cases for 23+ year so I have learned a lot of medicine along the way), by reviews of medical literature, by consultation with other med mal lawyers, and by consultation with Dr’s/nurses with whom we have worked over the years. In your case, I contacted an Emergency Room Dr. I knew and just ran your scenario by him. He said that under the limited facts you provided, the standard of care (SOC) for an ER Dr. would NOT have required that an MRI be performed. Because an MRI is an expensive test, the SOC does not mandate an MRI for all leg injuries and that the Dr. could properly rely on the xray unless there was some compelling physical examination finding which would have suggested that you had a torn tendon. I hope this helps answer your question.

My employer is refusing to fill out workers compensation papers I gave to him from the hospital. I got hurt at work and had to get stitches. Arnot Ogden is going to bill me if my employer doesnt fill out the papers. What should I do?

You can file your own workers compensation claim. Here is a link to the info you will need to file your own claim: http://www.wcb.state.ny.us/content/main/onthejob/howto.jsp It sounds like your employer is going to jerk you around so you should probably talk to an experienced workers compensation lawyer ASAP. Our firm no longer handles workers comp cases but I would strongly recommend Scott Learned from the Learned, Reilly and Learned law firm in Elmira. Scott is an excellent comp lawyer. His office # is (607)734‑1519. Good luck!

Does your firm currently or has your firm in the past represented Corning Medical Group in any medical malpractice case(s)? If so, would it be a conflict of interest for you to either represent or give a free consultation to a client with a medical malpractice case against Corning Medical Group or one of it’s physicians?

What is the time limit for filing a medical malpractice suit? (NYC)

The normal time limit for pursuing a medical malpractice lawsuit in NY is 2.5 years from the date of the alleged malpractice. However, much shorter time limits (ie 90 days) may apply if the defendant Dr or hospital is a municipal defendant. There are also certain exceptions to these time limits that my apply (ie if the person bringing the lawsuit is a minor, the time limit for them to do so may be extended up to 10 years, etc.). Because this can get very complicated and because blowing the time limit to file a lawsuit can be fatal to your claim, my best advice is to consult ASAP with an experienced medical malpractice lawyer. Hope this helps.

My husband received radiation treatments for a brain tumor which had been removed entirely. The oncologist told us he would receive a low dose of radiation to ensure cancerous cells would be killed to prevent regrowth of the tumor. After treatments were given the neurosurgeon commented on why the radiologist gave him the maximum dosage allowed for a lifetime. I am concerned about permanent brain damage caused by the excessive radiation and his ability to return to work.

Our lawyers are admitted in NY and PA. If your husband’s medical treatment occurred in either of these states, I would be happy to discuss his case with you. Just email me directly at [email protected] and I will walk you through the steps necessary to determine if your husband has a valid medical negligence case or not.

do you handle out of state medical malpractice cases?

We handle medical malpractice cases in NY and PA but we are always happy to assist folks in finding an experienced medical malpractice lawyer for cases that are outside of these two states. Accordingly, please feel free to email ([email protected]) us the details of your case and we would be happy to evaluate and then help you with a referral to an appropriate lawyer.

I was diagnosed with kidney cancer in September of 2012. Previously I had been to doctors and the E.R. for abdominal pain and it had been ongoing (off and on) for about a year. Not once did they say there was a spot or anything irregular on any of the numerous CT scans, MRI’s or ultrasounds of my abdominal area. After being diagnosed, quite by accident, I was told by the surgeon who will be doing the surgery this month, that the cancer was visible and obvious in each CT and MRI scan I had done in the previous months, and that he didn’t understand how or why the radiologist or other doctors had missed it. If they had found the cancer sooner, I could have been recovering by now, OR possibly not had to lose my whole kidney. When they actually found the cancer, they misdiagnosed “where” it was. The report from the radiologist said it was in the “upper pole” of the right kidney and the surgeon told me it was actually in the lower pole to mid area. This has been a long drawn out ordeal that could/should have been seen and taken care of months ago. I’ve had several bouts of pain that are completely debilitating. The surgeon said that these tumors are “usually” asymptomatic, but I still get stabbing pains in my flank area several times a day with flares that will send me to bed for days at a time.

Sorry to hear about your medical difficulties. If you are asking me if I think you have a viable medical negligence case as a result of the delay in diagnosing your kidney cancer, I am afraid that the determination of whether you have a case or not would require a lot more information. I have handled many “delay in diagnosis of cancer” cases but each case had it’s own unique facts. Your case too would require many more facts including: what type of kidney cancer do you have, what were the dates of the diagnostic testing like the CT and MRI, what did the radiology reports actually say, etc? My best advice to anyone who wants a true in-depth evaluation of a medical negligence case is to call my ace paralegal, Karen Wheadon, at 800-ZIFFLAW (943‑3529) and Karen will talk you through the details of your case. I then sit down with Karen and review all the info and perform any medical research necessary to give you an honest assessment of your prospects. Good luck and let me know if we can help.

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