Common Medical Malpractice Questions
What is the definition of medical malpractice?
Medical Malpractice results from professional negligence by a health care provider, such as a doctor, nurse, hospital, medical facility. In order for a Medical Malpractice case to exist, two key factors must be present: 1) a deviation (or departure) from accepted standards of medical practice; and 2) that the deviation or departure caused or contributed to the injuries sustained by the patient.
What is meant by “deviation” from accepted standards of care?
A doctor, hospital or health care facility commits malpractice when the treatment provided to the patient deviates from the treatment given by a doctor, hospital or medical facility providing that medical treatment is in the same field and in the same community. This standard is referred to legally as “a departure from accepted practice”.
Could you give some examples of common classes of Medical Malpractice cases?
Medical Malpractice can occur in virtually any medical treatment situation, but a few common examples are: 1) MIS-DIAGNOSIS: This happens when your real underlying medical problem is not treated correctly, resulting in a long-term injury that would not have occurred if it was properly diagnosed from the beginning. It often occurs when a doctor fails to refer you to a qualified Specialist, or does not order appropriate diagnostic tests; 2) FAILURE TO DIAGNOSE: This class of cases frequently occurs in treating a patient with some form of cancer. It results from misreading an x-ray, CT Scan or mammogram combined with a failure to timely perform necessary medical tests. This can often result in spreading a malignant disease (metastasis) to other organs resulting in severely increased cancer conditions. Also, a delay in diagnosing a cancer can result in increased medical damage that could have been avoided with an earlier proper diagnosis; 3) SURGICAL PROCEDURES: This class of cases happens when, during surgery, damage occurs to other healthy organs or nerves which, if the procedure was done correctly, would not have happened and would not have led to longer term complications.
What is meant by “Informed Consent”?
Prior to any surgical procedure, a physician is required to disclose the risks, alternatives and complications of the proposed procedure. Following the doctor’s explanation, patients are asked to sign a form called “Informed Consent”, meaning they are aware of what the doctor has discussed and agree to have the surgical procedure, given this information.
It is important to know that if a complication occurs during the surgery, as lawyers, we will not automatically accept it was a “risk” disclosed to you before the surgery Rather, it is essential to look at your underlying medical problem and determine whether the doctor or hospital took proper precautions and met the appropriate standards of care, prior to and during the surgery.
Is there Malpractice if my infant is born with a birth injury?
If an infant is born with a brain injury, or cerebral palsy, there may have been complications during the delivery procedure resulting in loss of oxygen. Any injury that occurs to an infant or mother during delivery, may be the result of a deviation or departure, which, regrettably, can result in the requirement for long-term medical care for the infant. This class of infant brain damage is a tragic one and requires experienced legal knowledge of medical facts and consulting an attorney at the earliest opportunity is highly recommended.
What is meant by the term "Statute of Limitations"?
It is a time period established by law, during which your suit must begin. Generally, the time frame is measured from the date of the accident. Courts demand strict compliance with the Statute of Limitations.
What is the Statute of Limitations for Medical Malpractice and are there any special rules for infants/children?
The general answer is 2 ½ years from the date the Medical Malpractice occurred. However, if a patient received continuous treatment by the same doctor or hospital who committed the Malpractice, then the 2 ½ year time-period is measured beginning with the date of the last medical treatment. For infants/children, the Statute of Limitations is extended up to ten years, or to 2½ years after the child reaches 18, whichever is sooner.
Is there a different Statute of Limitations time period if Medical Malpractice occurred in a hospital or health care facility operated or funded by New York City?
Yes, within ninety (90) days of the occurrence of a Medical Malpractice, a Notice of Claim must be filed. This is required when New York City, or any municipality or government entity, funds or operates the facility where the Malpractice took place. In New York City, all municipal hospitals are operated under the control of the Health and Hospitals Corporation, which are funded and operated by New York City and, therefore, require a Notice of Claim.
If a member of my family dies from Medical Malpractice complications, can the estate bring a lawsuit on behalf of the decedent?
Yes, a lawsuit can be brought on behalf of the surviving spouse or children who the decedent financially supported during his/her lifetime, provided the case is put into suit within two years of the individual’s date of death.
If my current immigration status is undocumented and I suffer Medical Malpractice, does my present immigration status prevent me from bringing a lawsuit to recover for my injuries?
No, No, No! Although many undocumented wrongly believe their immigration status prevents them from bringing legal action for an injury suffered, the truth is their immigration status has completely no bearing on their ability to seek recovery for an injury by filing a lawsuit. So, if you are currently undocumented and have been injured as a result of Medical Malpractice, or any other injury, consult an attorney. Remember, your immigration status does not prevent you from filing a legal action, if you have been injured.
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