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Answers to your
Questions
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 the unreasonable conduct
causes harm.
What
kind of mistakes can result in medical malpractice?
Many different mistakes may constitute medical
malpractice including:
- They did
not fully inform you of the risks before
treating you,
- They did
not determine the proper diagnosis of your
condition,
- They did
not perform appropriate diagnostic testing,
- They did
not properly treat your condition,
- They did
not perform the operation properly, or
- They did
not anticipate a problem which they should have.
How
does a case result in 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.
CAN YOU GIVE ME A GENERAL OVERVIEW OF
MEDICAL MALPRACTICE CASES IN NY?
- 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.
What
is the definition of 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".
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
does a jury determine if a doctor's actions were
within the standard of good medical practice?
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.
I
signed a consent form before my doctor performed
surgery. What did it mean?
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
do I do if I think I have a medical malpractice
claim?
Talk to an experienced medical malpractice lawyer.
Medical malpractice law is a highly-specialized,
very difficult area of law so make sure that you
speak with an attorney who has prior experience in
the medical malpractice field. Tell the attorney
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? Answers to these and other relevant questions
become important if you think your doctor may have
committed malpractice.
What
if I'm just not satisfied with the results of my
surgery? Do I have a malpractice case?
In general, there are no guarantees of medical
results. You would have to show an injury or damages
that resulted from the doctor's deviation from the
appropriate standard of care for your condition.
What
is the medical malpractice standard of care?
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.
My
doctor made a mistake and admitted it. Do I have a
malpractice case?
An experienced medical malpractice attorney 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. Damages may be recoverable for you under
medical malpractice laws.
What are
the attorneys fees in a medical malpractice case?
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 is
less than in a standard 'negligence' action. 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? 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 lawyers fee is 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.
Do I have
to pay taxes on a settlement for my injuries?
No you do not. In New York, compensation for your
injuries is tax free. You will receive notification
from the insurance company that paid you
compensation with documentation about your
settlement. You need to give that to your
accountant. However, there are no taxes to be paid
on your settlement.
When you invest those monies into taxable
investments, then any profit or gain you achieve is
obviously taxable.
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).
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.
Please see our
webpage on
Medical Malpractice for more information. |
