Frequently Asked Questions (FAQs)

Medical Malpractice Questions

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.