Many medical malpractice lawsuits are filed after an incorrect diagnosis or a delayed diagnosis. That being said, doctor misdiagnosis is not automatically medical malpractice. Here, our New York City medical malpractice attorneys explain when an incorrect or delayed diagnosis becomes medical malpractice in New York.

New York Law: Medical MalpracticeĚý

Under New York law, doctors and other medical professionals have a legal duty to provide patients reasonably high-quality care. When a doctor fails to abide by the standard of care — and that deviation from the standard of care is deemed to be the proximate cause for a patient’s injuries —Ěý medical malpractice has occurred ().

Put another way, doctors have a legal obligation to offer medical care that is at least as good as a reasonably prudent doctor would have offered under similar circumstances. This is the key element in a doctor misdiagnosis medical malpractice claim — a plaintiff must establish that an ordinary doctor would have been reasonably likely to have made a correct diagnosis if they were in the same situation.

Building a Case: How to Prove Misdiagnosis is Malpractice

Medical malpractice claims are among the most complex types of legal cases. Modern medicine is a highly technical field. Except for in the most egregious of malpractice cases, it is often not clear to the untrained person whether or not a physician’s failure to make an accurate diagnosis was actually negligence. In their earliest stages, some diseases and medical conditions are beyond the capabilities of our medical system.

For this reason, New York requires the use of in doctor misdiagnosis claims. If you or your family member was misdiagnosed, and you believe that the doctor or healthcare provider was negligent, it is imperative that you speak to an experienced New York medical malpractice lawyer right away. Your lawyer will be able to review the case, obtain the relevant medical records, consult with a qualified medical expert, and build a compelling medical malpractice claim.

Get Help From Our New York City Medical Malpractice Lawyers Today.

At The Dearie Law Firm, P.C., our top-rated New York medical malpractice attorneys are knowledgeable and committed advocates for patient safety and well-being. If you or your loved one suffered harm as a result of doctor misdiagnosis or delayed diagnosis, we are here to help.

To schedule a free, completely confidential initial consultation, please contact our legal team immediately. With permanent office locations in Manhattan, Brooklyn, and The Bronx, and mobile law offices throughout the region, we are well-positioned to serve clients throughout New York.

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Studies Suggest Physician Burnout May Result in Medical MistakesĚý

The recent study cited above comes less than a year after a study conducted by researchers at reported that “physician burnout is at least equally responsible for medical errors as unsafe medical workplace conditions, if not more so.” That study intimated that one of the most important methods for reducing rates of medical mistakes has nothing to do with safety measures at hospitals. Rather, it concerns the way in which physicians and surgeons approach their jobs, and redesigning the types of schedules that doctors have to reduce burnout. In short, when a person feels burnout, she or he does not do a job to the best of his or her ability.

Now, the µţ±đł¦°ě±đ°ů’s article suggests that physician burnout may be particularly pronounced among female doctors who have minor children at home.

Assessing Gender and Physician Burnout

The recent study examined survey results from more than 5,700 female physicians across a wide variety of medical specialties, geographic locations, and types of practices. The survey results were anonymous so that the researchers could obtain truthful data from physicians. In total, 49 person of the doctors surveyed “reported involvement in a medical mistake during their career.” For those who indicated that they had been involved in a healthcare situation involving a medical error, 80 percent reported that they experienced guilt that led to additional burnout.

The study looked particularly at the “second victim” effect, or the psychological distress experienced by physicians who are responsible for medical mistakes. When a physician makes an error, that physician often feels guilty and anxious, and can be likely to experience burnout, which can in turn lead to additional medical mistakes.

Physician burnout can be tied to many different factors, including schedules, hours worked, and duties outside work. Female physicians who have young children at home, like women in other professional settings, often are tasked with being primary caregivers in addition to fulfilling their roles as physicians, surgeons, and other healthcare providers. When the stresses associated with both professional and domestic duties are combined with the anxiety tied to involvement in a medical mistake, female physicians can experience marked burnout.

Contact a Medical Malpractice Lawyer in New York

Under , an injured plaintiff has two years and six months to file a claim for compensation if she is injured by a healthcare provider’s mistake. An experienced New York medical malpractice attorney can help with your claim. Contact The Dearie Law Firm, P.C. today.

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A new piece of legislation—Lavern’s Law—addresses this situation, to some degree, in New York, giving men and women whose doctors failed to make a cancer diagnosis more time to find a New York personal injury lawyer to seek justice on their behalf.

Statute of Limitations for New York Malpractice

Understanding what medical malpractice is will help you determine whether you have a case. According to the National Center for Biotechnology Information, the definition of medical malpractice is “ during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.”

Each state sets its own statutes of limitations for cases—laws that specify how long plaintiffs have a right to file a lawsuit in civil courts after they’ve suffered an injury or loss. In general, New York law says that victims of medical malpractice have two-and-a-half years after a mistake by a medical professional occurs to file a medical malpractice suit.

One of the huge problems with this law is that medical malpractice often is not readily apparent until months or even years after an error occurs. By the time many patients discover that malpractice may have occurred and find a personal injury lawyer in New York to take their case, their window of opportunity to file suit has closed.

A new law passed by the New York Legislature in 2017 addresses that problem, at least for some victims. The New York Legislature passed Lavern’s Law in June 2017. Again, the law extends the statute of limitations, but only for cancer patients, giving them two-and-a-half years after the discovery of malpractice to file suit. The law was initially intended to cover all malpractice suits, but New York lawmakers could not be convinced to extend that umbrella beyond cancer patients. At this writing, Lavern’s law still awaits the signature of New York Gov. Andrew Cuomo.

Lavern’s Law is named for Lavern Wilkinson, a Brooklyn resident who died in 2013 of lung cancer after Wilkinson went to the hospital’s emergency room in 2010, and doctors ordered an x-ray and EKG. A radiologist found a suspicious two-centimeter mass in Wilkinson’s right lung, but she never received the test results. She was told to go home and take Motrin by a first-year resident.

Had doctors acted properly then, Wilkinson would have had an excellent chance of beating her cancer. Wilkinson returned to the hospital again in 2012, where tests found that her cancer had spread to her liver, brain, lungs, and spine and was terminal. Her attending physician at the time informed her of the botched diagnosis in 2010.

Wilkinson’s window of opportunity to save herself had closed, as had her opportunity to sue for malpractice. She fought her cancer for 10 months—longer than the six months she was given to live—and died in 2013. Wilkinson left behind a 15-year-old child with special needs.

Lavern’s Law was a contentious issue for the New York Legislature, and the powerful medical lobby came out full-force against it. The bill failed passage in 2015 and was narrowly approved in 2017. The signing of Lavern’s law by Governor Cuomo would correct a great injustice done to the victims of medical malpractice, giving them time to realize physicians’ mistakes and seek recompense in court.

What to Do if You’ve Been the Victim of Malpractice

Remember, even if Gov. Cuomo signs it, Lavern’s law will apply only to cancer misdiagnoses. Malpractice for other ailments will still have to comply with the current statute of limitations, which is timed from the date of the event, not its discovery. The sooner you get the ball rolling on your malpractice case with a qualified New York personal injury lawyer, the better.

If you think you’ve been the victim of malpractice, take the following actions:

• Gather documentation – Collect all the lab results, tests, communications with your doctor, prescriptions, and other records of the care you received. This is important information you can provide your attorney. The more information you can provide, the better the foundation of your case.
• Question your care providers – Ask questions about the treatment you’ve undergone, the tests conducted, and your symptoms. Document what your caregivers tell you; it can be important evidence later.
• Ask your care provider to investigate – Ask your doctor or hospital to conduct an internal investigation into the matter. Your attorney may be able to obtain the results and use the findings to bolster your case.
• Get in touch with an attorney, ASAP – Remember, the clock is ticking on your ability to pursue a claim. Get your lawsuit filed as soon as you can to avoid missing out on the opportunity to get recompense for your injury.

The good news is that New York has no limit on damages that courts can award to a successful malpractice plaintiff. However, if you are found to be partially at fault for your injuries, the court can reduce your damages. For example, if a jury awards you $200,000 in damages, but you’re found to be 40 percent at fault in the accident, you would only get $120,000 at settlement or judgment.

One important thing your attorney must do in a medical malpractice lawsuit is to file a written certificate of merit within 90 days of filing the lawsuit. The certificate must state that the attorney has reviewed the case and consulted with a physician and found that grounds for malpractice exist or that the attorney had been able to meet with a physician, despite making three “good faith” attempts at consultation.

Working with The Dearie Law Firm

For victims of medical practice seeking compensation in the Empire State, working with an experienced personal injury attorney in New York is a must. The Dearie Law Firm has recovered millions for plaintiffs who have been injured by the negligent acts of medical professionals. Some recent victories by the firm include:

• Recovering $1.25 million for a client whose doctor failed to diagnose a spinal cord compression on an MRI.
• Recovering $675,000 for a Manhattan woman infected with Hepatitis C from an unsanitary dialysis machine.
• Recovering $1 million for the parents of a child infected by Aspergillus while staying in a city hospital.

The Dearie Law Firm has practiced in New York for more than 30 years, helping clients just like you recover compensation and damages when they’ve been harmed by the actions of another.

The firm does more than just show up for court dates and file paperwork; attorneys with The Dearie Law Firm counsel clients through all the steps of their lawsuit, helping to ease the frustration and anxiety victims often feel when they must work their way through the complexities of the court system.

If you’ve been the victim of medical malpractice, you need a personal injury lawyer in New York City who knows the system and its players; contact The Dearie Law Firm to get the aggressive, competent representation you need to get the settlement or judgment you deserve.

Sources

1. /practice-areas/personal-injury-malpractice-2/

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A common test used by personal injury lawyers and the courts is to determine if, given the same circumstances, would other medical professionals have conducted themselves in a similar manner in your care and treatment, and would this have prevented your injuries.

In addition, there are specific criteria¹ that must be satisfied, including whether:

• There was an existing patient-doctor relationship.
• The medical professional failed to provide the proper duty of care.
• The medical professional breached the standard of medical care.
• The patient was injured due to the medical professional’s negligence.

If you believe your healthcare provider was negligent, then your next step is to arrange a consultation with qualified New York City injury attorneys. In New York, the state has a specific statute of limitations in place. The clock starts ticking when the injury occurred or at the conclusion of ongoing care and treatment during which the injury occurred.²

You will need to retain the services of a medical malpractice personal injury lawyer familiar with the laws. During your initial consultation, it is a good idea to bring along any medical records, documents, and other forms that can help establish grounds for filing your suit.

Do not worry if you are not in possession of all such records. Your lawyer will review what you have and let you know what other documentation they will need to obtain. In many cases, they will have you sign an authorization for release of your medical records.

Your lawyer will determine an initial potential settlement amount you could receive, based on the extent of your injuries. They will take into account ongoing medical care and treatment you need because of the injury, pain and suffering, present and future lost wages, and other factors. In some cases, you could be entitled to seek punitive damages if the medical professional behaved in a reckless manner that resulted in your injuries.³

Talking to a lawyer and filing a medical malpractice suit does not require any upfront legal retainer fees. Your lawyer will explain how much you will owe them should they reach a settlement or win your case during trial.

Your lawyer will conduct an investigation wherein they will consult with other medical experts, gather the required documentation, and start to build your case. Once they have everything they need, they will file a complaint in the appropriate court. In New York, cases valued at more than $25,000 are filed in New York Supreme Court. For values under $25,000, the case is filed at the Civil Court level.

One your case has been filed in court by your New York personal injury attorney, the next step is to have the summons and complaint served on all parties you are suing. This could include the medical professional, the healthcare facility they are employed by, and others. Your injury lawyer will determine if more than one party was negligent and responsible for your injuries.

Once any summons and complaint has been served, the process server will return a signed affidavit signifying all parties have been notified. At this point, the defendant or defendants have thirty days to file a formal response to your initial complaint.

The response must be written and filed through the court. Once received, your lawyer will review the responses and may amend your original complaint. If no responses are received by the court by the deadline, then your initial complaint is considered to be true and the responsible parties are admitting negligence.

As the lawsuit proceeds, the next step is the discovery phase. This is where your lawyer and the defendant’s lawyer exchange information about the malpractice suit.

You may be required to respond to specific inquiries from the other party’s lawyer, such as providing specific documents, medical billing statements, or even agreeing to an independent exam by a third-party physician.

Some medical malpractice lawsuits may settle prior to trial. The medical professional’s malpractice insurance provider may attempt to negotiate a medical malpractice settlement. The negotiation process may begin early on in the discovery process.

However, initial settlement offers may not be deemed reasonable by your lawyer. While accepting or rejecting settlement offers is ultimately the decision of the injured victim, listening to the advice of experienced medical malpractice attorneys is important. Accepting an undervalued settlement offer, while tempting, can be short-sighted.

Once a medical malpractice suit settles or goes to verdict at trial, you will be required to sign various documents which officially conclude the lawsuit. Your attorney’s legal fee will be calculated out of the settlement value of your case, based upon the Retainer Agreement you signed with your attorney.

If a fair and reasonable settlement agreement cannot be reached, then your case will proceed to trial. Even during trial preparation, your lawyer and the defendant’s lawyer may still be negotiation a possible settlement agreement.

During the trial, both your lawyer and the defendant’s lawyer can call witnesses, experts, and others to the witness stand to provide evidence. Any witnesses called to the stand are sworn in and can be cross-examined by the other party’s lawyer.
After all the witnesses have been called, the lawyers will present closing arguments to the jury. At this point, the jury must decide on a verdict in the case. Keep in mind, your lawsuit is a civil action.

Unlike a criminal trial where a jury must decide “beyond a reasonable doubt” whether the defendant is guilty or innocent, in a civil trial, jurors must determine whether the defendant was negligent and the extent their negligence contributed toward your injuries.

The verdict will determine if the defendant is liable for your damages and if so, the amount of damages you should be awarded. In cases where there are multiple defendants, the jury will evaluate each defendant individually with respect to the amount of negligence they contributed.

If either party believes that mistakes were made at trial, they do have the right to file an appeal with the appropriate court in New York.

As you can see, how long does a medical malpractice suit take to go from filing to award largely depends on the specific circumstances of your case and the willingness to negotiate fair settlements by the insurance company. Our lawyers understand you might start to feel frustrated because it is taking so long. However, just remember that we are working in your best interests to ensure you receive a fair and just settlement.

If you were or a loved one was injured due to the negligence of a medical professional or another healthcare provider, it is in your best interests to speak with our personal injury New York law firm as soon as possible. You could potentially have grounds to file a malpractice suit.

To schedule a free initial consultation, call The Dearie Law Firm, P.C. at (212) 970-6500 now. Our law firm and New York City injury attorneys are available 24/7.

Sources

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