By Jim Reed
We’ve all seen the TV ads: medical malpractice clients talk about their big settlements like they won the lottery. The out-of-town lawyers make the process sound fast and simple, but the reality is much different.
The ads give all medical malpractice lawyers a bad name because they mislead viewers – especially those who are seriously injured and seeking justice – into thinking all claims will be successful and their case will be resolved quickly.
It’s not true.
I’ve been a personal injury and medical malpractice lawyer for more than 30 years and the reality is resolving medical malpractice cases often takes years. Fortunately, in the end, my clients have been satisfied with their settlements, but it takes a lot of time, hard work, and patience. Many factors have to come together for a satisfying outcome.
I spend several years with clients and their families while their cases are active. I visit their homes, see their family photos, meet children and grandchildren, and much more. It gets very personal for me.
That’s why, before I put an injured person and their loved ones through years of emotional ups and downs and waiting, I ask a lot of questions to see if I think I can be successful in getting an appropriate recovery. I carefully review medical records, and if the initial review looks promising, I consult with appropriate medical experts to obtain an opinion that the medical care did not meet the required standard of care.
Here is some information about medical malpractice law in New York state:
- 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.” To file a malpractice action, I must have an expert willing to confirm they have reviewed the case and found that the treating doctors departed from the applicable standard of care.
- Doctors 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 doctor’s negligence. Accordingly, it is important to keep in mind that just because someone has a horrible result does not mean they have a good malpractice claim.
- Doctors are also not liable for exercising medical judgment by choosing from accepted treatment alternatives. For example, if there are three accepted ways of treating a particular condition and the doctor chooses treatment method No. 1 rather than No. 2 or No. 3, he or she is not negligent even if in hindsight it could be said that the second or third options may have been a more effective treatments. Where a doctor may be negligent is when he or she chose an unaccepted method of treatment or failed to perform appropriate diagnostic tests to decide the best method.
- The burden of proving that the doctor departed from the accepted standard of care is on the party bringing the lawsuit. In other words, if a jury was to find that the doctor’s version of the case was as equally persuasive as the patient’s version of the case, then the patient would lose because they did not sustain the burden of proving that their version was more likely correct.
- The costs of pursuing a malpractice case are huge. It is not unusual that costs exceed $20,000 to $30,000, so I only accept those cases where there is a good likelihood of success and where I believe the jury would return a very substantial verdict. 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, I only take medical malpractice cases where our clients have suffered very significant, permanent injuries.
I provide all of this information not to be discouraging but so people have an appreciation for what the reality is in medical malpractice cases.
This is not the lottery and it takes hard work by both the lawyer and the client to ultimately prevail.
Thanks for reading,
Best Lawyers’ “2015 & 2017 & 2019 Lawyer of the Year”