In order to prove that there was a deviation or departure from the accepted standard of care, the patient must first establish the existence of a specific standard of care to be applied to the particular circumstance. Next, the patient must prove that the standard was violated.
The patient, who is called the plaintiff, has the burden under the law to prove, most often by expert testimony, the standard and the departure from the standard. It is only after proving a deviation from the standard that the patient can then attempt to prove that an injury stemmed from the proven departure.
The law requires expert testimony linking any departure from the standard of care to the patient’s particular injury. For example, if the claim is that during gallbladder surgery the surgeon departed from the accepted standard of care by cutting the bile duct, resulting in a long period of sickness and major reconstructive surgery, the expert must, with reasonable certainty, give the opinion that the cutting of the duct was a substantial factor in causing the resultant problems. In the law, this is called the “but for” standard—but for the cutting of the bile duct, the sickness and reconstructive surgery would not occur.
Over time, the courts began to realize that it might be difficult in some cases for the patient to prove “but for,” and that doctors might then escape the results of their negligence. Because of this concern, the courts began to look at an increased risk scenario as an avenue for the patient to recover damages. An illustration of this scenario is a failure to timely diagnose cancer. Suppose the plaintiff develops breast cancer, a development which surely cannot be considered a doctor’s fault. But further suppose that, because of negligence, the cancer went undiagnosed for several months and spread, putting the patient’s life in jeopardy.
The court addressed such circumstances and determined that the patient (the plaintiff) should be allowed to argue that the spread of cancer was caused by the delayed diagnosis and, therefore, delayed treatment (or lack of treatment). In such cases, the plaintiff may attempt to demonstrate that the delayed diagnosis increased the risk of cancer spread or recurrence and that this increased risk was a significant factor in the patient’s current condition.
Proving your medical malpractice case can be extremely difficult, if not impossible, without the help of an experienced attorney. At Simonson Goodman Platzer PC, the best medical malpractice lawyers in New York can help you determine if you have grounds for a case and, if so, will begin immediately investigating your situation and working with medical experts to demonstrate how a medical provider deviated from the standard of care and what effect this has had on your life.
The New York medical malpractice lawyers at Simonson Goodman Platzer PC have been representing victims of medical malpractice for decades. Our firm has recovered more than 200 million dollars for our clients, proving successful in securing compensation in 98% of the cases handled. One of our partners, Attorney Paul Simonson, has been named Lawyer of the Year for Plantiffs Medical Malpractice. Paul, along with our other attorneys, has consistently been recognized for his legal practice, including being named as a “Best Lawyer in America” and selected for inclusion in the Super Lawyers® list in the field of medical malpractice.
Medical providers are highly trained professionals with years of schooling and training. However, that does not mean that they are always able to achieve the outcomes patients want. A poor outcome after a medical procedure or treatment does not necessarily mean that the patient is a victim of malpractice. Instead, medical malpractice occurs when a doctor or another health care provider fails to provide services that meet the accepted standard of care.
A medical professional may fail to provide standard care when he or she fails to do something that another medical professional could reasonably have been expected to do or, conversely, when the provider does something that is prohibited by the standard of care.
In order for a patient to recover monetary damages for substandard care, the patient must prove that the negligent care was a substantial factor in causing an injury, which includes a period of pain and suffering, or long-term or permanent disability. In the event that a person dies as a result of receiving substandard medical care, the surviving family members/representative must prove that the negligent care was the proximate cause of death.
One of the most common forms of medical malpractice is the wrong, delayed, or late diagnosis of a serious medical condition, often cancer or a heart attack or stroke.
Another typical malpractice case involves a surgical mishap; for instance, when a surgeon causes damage to something inside the body that was never supposed to be involved in the operation. Sometimes, something is left inside the patient’s body during surgery. This is an obvious example of medical malpractice and something that is referred to as a “never event” within the medical community, as it is something that should never happen. That's when you need to hire a malpractice attorney.
At Simonson Goodman Platzer PC, we have a long history of success in representing victims of all types of medical negligence.
Patients may recover monetary damages for both physical and emotional losses in medical malpractice cases. Importantly, New Jersey courts have recognized that “loss of enjoyment of life,” sometimes called hedonic damages, should be compensated in appropriate cases. The courts have said that the loss of pleasure and enjoyment is a loss that should be compensated, and compensation should be granted to those who, because they are in a comatose state, are “…unable to appreciate one’s own restrictions.”
In addition to pain and suffering, emotional distress, and hedonic damages, suits are permitted for damages that occur as the result of “wrongful” death. In order to bring such a suit, an executor or administrator must be appointed by the court.
Though every case is different, if you are the victim of medical malpractice, you may be entitled to compensation for the following damages:
- Medical costs associated with additional treatments, including revision surgeries
- Other medical expenses, such as rehabilitative treatment
- Medications, medical devices, and medical equipment (wheelchairs, etc.)
- In-home care costs and costs associated with home modifications
- Lost wages, including lost future earnings
- Loss of enjoyment of life
- Pain and suffering, including emotional distress and trauma
- Wrongful death damages
According to a recent poll, almost three-quarters of Americans are so deferential to their doctors that they never get a second opinion when surgery or other treatment is recommended. This is a startling figure when you consider the proliferation of websites that consumers access before making a decision to buy something or eat somewhere. The problem is particularly acute among older patients who tend to be hesitant to question authority and were brought up to believe that the doctor is always right.
A second opinion is not only common sense – it is a right, a right that most insurers will pay for. Insurers are well aware that errors in diagnosis, or outright misdiagnosis, are all too common. They are also aware that doctors are rewarded financially for doing procedures rather than prescribing medicine.
When your doctor recommends surgery or other procedures, take a minute to think. If you have doubts, express them. If you have questions, ask them. If it’s not an emergency, go home and talk to family members. Go online and do some research. Be skeptical-doctors are not infallible. After all, the life you save may be your own.
Each state has its own statute of limitations, meaning time in which you may file a claim, for medical malpractice.
The general rule applied to adults in New York is that a suit for medical malpractice that involves injuries (rather than death) must be brought within two and a half years of the act of malpractice or within two and a half years after the plaintiff reasonably knows that he/she has suffered an injury as a result of treatment and knows or has reason to know that the treatment was negligent.
The statute of limitations is different for minors who sustained birth injuries or injuries caused by medical malpractice or negligence before they reached the age of 18. In New York, the statute of limitations is still two and a half years, but the clock does not start ticking until the minor’s 18th birthday. Essentially, this means that a person who was injured as a result of medical negligence as a child has until they are 20 years and 6 months old to bring a claim.
In cases involving death, the suit must be started within two years after the date of death. Contact one of our medical malpractice lawyers for more information.
In some cases, depending on the entity in question and whether there are “public employees” in question, a notice of claim must be filed within 90 days of the act of negligence. Contact our attorneys to learn more.