Medical Malpractice Laws Protect Victims

Most people associate the term “medical malpractice” with a doctor making a mistake, but it’s a legal term that’s much more in depth than any simple definition.

Whenever a medical professional accepts a patient, they are legally bound to provide a level of care meeting or exceeding industry standards. That’s open-ended, and the medical community defines it with the question, “what would a competent medical professional have done given the same patient and circumstances?”.

It’s worth noting that doctors are not the only defendants in medical malpractice claims. Dentists, plastic surgeons, specialists, and even pharmacists may also be accused.

Even if the care provided fails to live up to industry standards, you may still not have a valid medical malpractice claim. Medical malpractice demands that the care in question caused some type of damage to the patient. In this usage, damages are also a legal term, but they have a fairly broad meaning. An exasperated medical condition, unnecessary medical bills, non-treatment of a treatable condition, emotional duress, and loss of income may also qualify as damages depending on the situation.  

There is a statute of limitations on medical malpractice claims, but it varies by state and on the claim specified. According to a study conducted in 2013 by BMJ Open, the three most common reasons for a medical malpractice claim are Failure to Diagnose, Negligent Treatment, and Failure To Warn.

Failure to Diagnose describes situations in which a medical professional failed to diagnose a patient at all, or misdiagnosed them leading to incorrect care.

Negligent Treatment refers to situations in which a mistake was made that a reasonably competent medical professional would have avoided, given the same patient.

Last, Failure To Warn deals with cases where medical professionals failed to adequately explain the risks and benefits associated with any treatment option before beginning it. Even if no other mistakes were made, a failure to obtain informed consent (wherein the patient understands the risks of any procedure and agrees to take them on) prior to treatment is enough to bring forth a medical malpractice claim.

The process of bringing a medical malpractice claim varies by jurisdiction. Some states require the plaintiff to jump through a few hoops first, such as providing the defendant with advance notice of an intent to sue, obtain a certificate of merit from a qualified medical professional attesting to the validity of their claim, and/or agree to mediation to attempt to resolve the matter without litigation.

Once that’s done, both sides share the information that they have collected in a process called discovery. You may be able to get a medical malpractice settlement at this juncture if your case is irrefutable, but otherwise you’re headed to trial.

As with most cases, the burden of proof is on the plaintiff in medical malpractice lawsuits. Both sides are expected to provide expert witnesses (meeting certain criteria defined by the Court) to testify to the quality of care provided, with either a jury or a judge deciding which side made the more credible argument.

After the trial, either side may appeal to begin a new trial. A plaintiff dissatisfied with the amount of their monetary award may sue for additur in some jurisdictions. Likewise, a defendant who feels that they have been ordered to pay too much may be able to sue for remittitur to decrease the amount.

The process is filled with legalese, but the most important thing to remember is that laws are on the books to protect the victims of medical malpractice. If you feel that you or a loved one may have been such a victim, you should not hesitate to contact a qualified attorney to discuss the particulars of your case.




Suing a Government Entity in New York

If you have been injured in an accident and a government agency is found to be liable for your damages, you will have the option of filing a claim in civil court against them to recover compensation for your losses.

Filing a civil lawsuit against a government entity in New York can be quite complicated, however which is why working with an attorney is in your best interest. Continue reading to learn more about suing the government in New York State so that you can be better prepared for what’s to come.

Filing Before the Statute of Limitations Runs Out

First and foremost, you need to make sure that you file your claim before the statute of limitations runs out in your case. In New York, this will only be 90 days from either the date of the accident you were injured in, or from the date in which you were diagnosed with injuries that were related to the accident in question.

However, if you fail to file your claim within the time limit, the Courts will bar you from being able to recoup compensation for your sufferings. Your attorney will ensure that your claim gets filed in time so that you can achieve maximum repayment in your case.

The New York Court of Claims Act

New York’s Court of Claims Act states that the state and it’s agencies or entities can be named as defendants in civil proceedings the same way that you would bring a claim against an individual. It also names some of the different types of accident claims that could be brought against them. Some of these types of claims include:

  • Medical malpractice claims – You will be able to file a claim against state-run hospitals, doctor’s offices, physicians, and other government regulated medical entities that apply to your medical malpractice claim when you suffer further injury due to the entities medical negligence.
  • Motor vehicle accidents – A claim could be brought against a government entity in two of these circumstances: one, if you were injured in a car crash and the driver of the other vehicle was engaging in dangerous driving practices such as distracted, drunk, drowsy or aggressive driving. Two, you can file a claim against the New York State Department of Motor Vehicles if the roads themselves were unsafe whether that be due to a large pothole, debris in the road, an unsecured road construction zone, or misplaced or missing street signs or lamps.
  • Premises liability claims – You can pursue a civil claim against a government agency for premises liability when you are an invited guest or if the property you are on welcomes the public and is run or owned by the state and the people they employ. This is in regards to dangerous or malfunctioning conditions on the property such as icy walkways, wet floors or unstable handrails to name a few. Your attorney will need to prove that these types of unsafe conditions were not addressed in a timely manner to establish negligence.

There are a number of other types of accident claims that can be brought against the government as long as liability can be proven. Proving liability means that your attorney needs to prove the state has been negligent in some way.

This will be done by demonstrating that the government entity caused your injuries, that the state owed and breached a duty of care to you, and that your injuries resulted in economic and/or non-economic damages.

Compensatory Damages in a Claim Against The Government

Quantifying your losses will be of utmost importance in your government claim. We mentioned that in order to establish negligence, your attorney will need to prove you endured economic and non-economic losses.

Economic damages refer to the financial losses you suffered which could include medical expenses, property damages, lost wages and damage to your future earning potential.

Non-economic damages affect your lifestyle and/or emotional state and might include your pain and suffering, loss of enjoyment of life, the effects of disfigurement, the loss of household services, inconvenience, the loss of companionship and love, and mental anguish.

Your attorney will calculate the value of your claim so that the government entity being named as the defendant in your case is compelled to compensate you in an appropriate manner.

Schedule Your Free Consultation Today

Going up against a state-run agency can be intimidating. When you’re gearing up to pursue a claim against a government entity in the state of New York, you need the New York attorneys Greenstein & Milbauer by your side. You can schedule your free claim assessment today by visiting their website or by calling the office at 1-800-VICTIM2 (842-8462).