Medical malpractice is the failure of a doctor or other health professional to provide reasonable care in treating their patient. Failure to use reasonable care means that a doctor did not do something that a reasonably careful doctor would have done, or they did something that a reasonably careful doctor would not have done.
In New York, you have two and a half years from the date of the incident to sue the medical professional who caused your injury. However, there are exceptions for special cases, so be sure to contact our medical malpractice lawyers in Long Island as soon as possible.
At Carner & DeVita, our medical malpractice lawyers have represented victims for over 50 years. Call us today at 631-380-4417 or contact us online for a free, no-obligation consultation.
What Is Medical Malpractice?
Medical malpractice occurs when a healthcare provider deviates from the standard of care in their treatment of a patient, causing an injury or even death.
“Standard of care” is an action that a reasonably cautious doctor or other medical provider would have taken if they were in the same or similar situation. For example, the standard of care for a cancer patient could include their doctor’s recommendation for chemotherapy. Of course, every cancer patient has different needs, but any reasonable doctor with the same knowledge and experience would make the same decision.
Unfortunately, not every doctor uses their best judgment. Their failure to uphold the tenets of the Hippocratic Oath (one of the oldest binding documents in history and the cornerstone of modern medicine, in which physicians and medical workers promise to provide the best medical care and cause no harm to their patients), is an abomination to the medical community and a devastating mistake for victims and their families.
Medical malpractice should always be taken seriously, but not every bad result from a medical procedure is malpractice. Medicine is an imprecise field and quite often, a “bad result” turns out to be an acceptable risk of the medical procedure, rather than medical malpractice.
If you have questions about the validity of your case, contact one of Carner & DeVita’s medical malpractice lawyers in Long Island. We will work hard to hold the negligent doctor or medical professional accountable and get you the compensation you need to move forward.
What are examples of medical malpractice?
Medical malpractice can take many forms, but the following are common litigable examples:
- Failure to diagnose — Failure to diagnose encompasses several issues. These include: Failing to test for a possible medical condition or conducting the test incorrectly; interpreting the test results incorrectly, or failing to realize the urgency of a patient’s medical condition.
- Misdiagnosis — A common example of misdiagnosis is when a patient visits their doctor with complaints of chest pain and the doctor diagnoses the ailment as indigestion when the pain is actually the first signs of a heart attack.
- Misreading or ignoring laboratory results — Lab results can be misread by inexperienced lab technicians or by doctors who are inexperienced with a certain disease or ailment. In that case, the doctor should refer the patient to another medical professional with proper experience.
- Failure to order proper testing –– An example of this type of malpractice is a gynecologist failing to order a mammogram for a woman who reported breast changes.
- Ordering or performing unnecessary surgery — Sometimes, nonsurgical treatments are a better option for patients. Unfortunately, some doctors who are motivated by profit will order a surgery that isn’t actually needed, and indeed, could put the patient in harm’s way. An example of unnecessary surgery is a Cesarean, or C-section performed on a woman who isn’t facing birth complications. These procedures can be very dangerous, and doctors should perform them only when medically necessary.
- Surgical errors or wrong site surgery — These are perhaps one of the more terrifying examples of medical malpractice. One of the most common fatal surgical errors involves improper administration or dosage of anesthesia. Wrong site surgery involves operating on the wrong side of the body, as was the case for a female patient whose right side of her vulva was removed when the cancerous lesion was on the left side.
- Improper medication or dosage — Medication errors can occur for a number of reasons, including the doctor’s failure to take patient information such as allergies and other medications, confusing drugs with similar names, and inappropriate abbreviations.
- Poor follow-up or aftercare — A doctor’s job isn’t done when the procedure ends. Doctors and medical professionals must check in with their patients to ensure the procedure went well without complications that must be taken care of.
- Premature discharge — Premature discharge occurs when a hospital or doctor’s office releases you before you are ready. For example, surgical patients must remain for a certain amount of time at the procedure site to ensure they are recovering properly. If they aren’t but are released early, they can suffer severely.
- Disregarding or failing to take appropriate patient history — The Nobel Peace Prize-winning cardiologist Bernard Lown, MD referred to a British study that showed that “75% of the information that leads to a correct diagnosis comes from taking a detailed patient history.” This statistic shows how important it is to ask in-depth, comprehensive questions about each patient’s past and current health, medications, and family history. Without a detailed patient history, it’s more likely that a physician will make a mistake or prescribe an inappropriate medication.
Common Issues Caused by Medical Malpractice
The following are common issues caused by medical malpractice: birth injury, anesthesia errors, emergency room and hospital errors, misdiagnosis and delayed diagnosis, and postoperative negligence.
The estimated U.S. birth trauma rate is 1.9 per 1,000 births. That number may seem low, but birth injuries can cause significant damage to the baby’s and mother’s health and wellbeing. Some birth injuries can be treated fairly easily, but others are chronic issues that will affect the child their whole life.
Cerebral palsy is caused by abnormal development of the brain or damage to the developing brain, such as oxygen deprivation that can occur in the birthing process due to improper medical care. Cerebral palsy is the most common motor disability in childhood, and depending on which areas of the brain are affected, it can cause stiff muscles, uncontrollable movements, difficulty walking, eating, and picking up on fine motor skills, and delays in reaching motor skills milestones.
Erb’s palsy (brachial plexus palsy)
On average, span style=”font-weight: 400;”>one or two of every 1,000 babies are born with Erb’s (brachial plexus) palsy, and it’s usually caused by the infant’s neck being stretched to the side during a difficult delivery.
The brachial plexus is a network of intertwined nerves that control movement in the hand, arm, and shoulder. In cases of brachial plexus injury, nerves in the upper nerves in the brachial plexus are affected, causing weakness, loss of feeling, and partial or total paralysis of the affected arm.
Careless and Negligent Errors
Physicians take an oath to provide the best medical care and not harm their patients. Unfortunately, not every physician follows through on this promise, and even more unfortunate is the fact that their negligence causes harm to the most vulnerable population, newly-born infants.
Careless and negligent errors during birth include delayed C-section, oxygen deprivation, failure to monitor the baby, wrongful birth, and wrongful pregnancy.
If you or your newborn baby was injured by the actions of a doctor or nurse, contact one of our medical malpractice lawyers in Long Island immediately. We can help you get the care and compensation that you need.
Anesthesia is one of the greatest advances in medicine, as it is essential in preventing patients from feeling pain during procedures. However, anesthesiology is inherently dangerous and is not without risks that can cause injury or even death. Some of these are caused by the anesthesiologist’s substandard level of care, resulting in negligence.
Anesthesia errors can occur for a number of reasons, including too much, too little, or delayed anesthesia; failing to prevent an adverse reaction from combining anesthesia and another medication; administering the wrong type of anesthesia; failing to properly monitor the patient during a surgical procedure, and using defective equipment or medical devices during anesthesia.
A study found that the frequency of drug administration error among reported 7,794 cases was 0.75%, or 1 per 133 anesthetics. The two main categories for errors involved incorrect doses (20%) and substitutions (20%). The study stated that adverse drug effects during anesthesia are “considerably more frequent than previously reported.”
Emergency Room Errors
There are many reasons why an error can occur in an emergency room — stressful conditions, understaffed and ill-equipped facilities, and poorly-trained staff can all lead to injuries and, in some cases, death.
Although emergency room physicians have more leeway regarding medical malpractice than hospital or office physicians do, negligence is never excusable. Some of the errors that can stem from a negligent or careless mistake in the ER include:
- Medication or prescription errors
- Failure to diagnose impending heart attacks or strokes
- Diagnosis errors
- Errors in interpreting x-rays, CT scans, and MRIs
- Discharging patients who are ill and need care.
Just because the ER has more leeway with medical malpractice doesn’t mean that you can’t hold the physician responsible who caused your injuries or loved one’s death. Call one of our medical malpractice lawyers in Long Island today to learn how your case could qualify.
If you or a loved one were injured while receiving medical treatment in a hospital, you have the right to bring legal action. These cases can become complicated, however, when you consider the fact that hospitals are responsible for their employees (nurses, medical technicians, etc.) and are often not responsible for the negligent actions of doctors.
Nurses, medical technicians, and support staff are usually hospital employees. As long as the employee was doing something job-related when they caused injury to a patient, the patient can usually sue the hospital for resulting harm.
However, most doctors are not hospital employees, meaning they are “independent contractors” in the eyes of the law. That means the hospital cannot be held liable for the doctor’s malpractice, even if the malpractice occurred at the hospital.
Hospital malpractice is complicated, and there are many moving parts in determining who can be held liable. If you or a loved one were injured while receiving treatment at a hospital, contact one of our medical malpractice lawyers in Long Island to find out who you can potentially sue for damages.
Medical Device Errors
Defective medical devices won’t do you any good. In fact, they could cause severe injury and death, especially if you had a serious health condition to begin with, for which the device was meant to help.
Some medical devices with the highest defect rates include:
- Implants (breast, hip, knee, etc.)
- Dialysis filtering devices
If your or your loved one’s medical device caused injury or death because a defect prevented the device from functioning properly, you can hold the hospital, manufacturer, or distributor responsible.
Misdiagnosis & Delayed Diagnosis
Misdiagnosis — In the U.S., around 12 million people are affected by medical diagnostic errors, including misdiagnosis, each year. Of those, an estimated 40,000 to 80,000 people die each year from complications related to these misdiagnoses.
Misdiagnosis and delayed diagnosis are serious issues that can cause devastating injuries. In many cases, a mis- or delayed diagnosis causes death.
These negligent actions might make your condition worse, delay the correct diagnosis, or result in more harm or even death. Misdiagnosis also includes situations where a doctor fails to diagnose their patient at all, which is extremely dangerous.
If you believe you or a loved one were wrongly diagnosed, speak with one of our medical malpractice lawyers in Long Island for more information.
According to an article published in the Journal of Community Hospital Internal Medicine Perspectives, adverse drug events (ADEs) make up more than 3.5 million doctor’s visits and 1 million emergency room visits each year. The article states that more than 7 million patients are impacted by preventable medication errors, costing $21 billion annually.
Medication errors are one of the more terrifying examples of medical malpractice, as modern prescriptions are stronger and more effective than ever before. That is, they’re effective if the doctor prescribes the correct medication and dosage, but that’s not always the case. Some of the most common types of medication errors include:
- Prescribing the wrong medication
- Prescribing the wrong dosage of medication
- Mislabeling the medication
- Prescribing a medication to which the patient is allergic
- Prescribing a medication that interacts negatively with other medications that the patient is taking
- Failing to warn the patient of the potential side effects of the medication.
Anyone in the chain of prescribing and administering medication can be held liable for any injury or death that occurs. That includes doctors, nurses, hospitals, pharmacies, and the pharmaceutical manufacturer. Usually, the only situation in which the pharmaceutical company can be held responsible is if they failed to publish the side effects and potential interactions.
Medication errors are serious, and you shouldn’t take these cases lightly. If you or a loved one suffered injuries or death from a wrongly prescribed medication, call one of our medical malpractice lawyers in Long Island now.
How is medical malpractice proven?
In order to prove a case for medical malpractice, your attorney will have to prove four things:
- A doctor-patient relationship existed: You can’t just sue a doctor for advice you overheard them give at a party. You’ll have to show that you had a physician-patient relationship with the doctor or medical professional that you’re trying to sue. This means you “hired” the doctor and the doctor agreed to be hired in order to provide you with treatment or a medical procedure.
- The doctor was negligent: As mentioned above, a bad result does not necessarily mean that medical malpractice took place. A person can’t sue a doctor just because they’re unhappy with the result; you will have to prove that the doctor was negligent and that negligence caused you harm. Typically, a board will determine whether another doctor would have reasonably made the same or similar decisions under the same circumstances.
- The doctor’s negligence caused your injury: There must be a connection between the injury or illness and the treatment that you received. For instance, a patient suffers complications post-surgery, but they aren’t related to the surgeon’s performance, so they may not be eligible for compensation under medical malpractice laws.
- Your injury led to specific damages: You and your attorney must prove that you suffered actual damages as a result of the medical professional’s actions. These could be economic damages, such as lost wages, or noneconomic damages, such as pain and suffering. If no harm was suffered, malpractice laws generally don’t apply.
What medical malpractice damages can an injured person recover?
A patient who was injured by a medical professional’s negligence or carelessness can recover a variety of damages. (Damage is a legal term meaning a loss or harm resulting from injury for which the injured party may be compensated.) In a medical malpractice case, injured parties can recover for any of the following damages: general, special, and punitive.
Economic (Special) Damages
Economic damages, also known as special damages, reimburse the patient for financial costs related to the malpractice that caused their injury. These damages cover medical expenses related to the treatment or therapy needed to address or fix the injuries, as well as lost income if the patient missed work.
Patients may be able to recover damages for future medical expenses, as long as a doctor or other expert attests to the alleged future cost.
General (Non-Economic) Damages
General damages, also known as non-economic damages, refer to a person’s cost of suffering that does not have a definite price. Loss of enjoyment of life, physical and mental pain and suffering, and loss of future earning capacity are all types of general damages. Because there isn’t a one-size-fits-all financial remedy for enjoyment of life, for example, general damages can be quite difficult to calculate.
Punitive damages are fairly uncommon, but are useful in the case of intentional wrongdoing. Punitive damages are not only intended to reimburse the patient for their injuries, but to punish the medical professional who caused harm and to send a message to the medical community.
Radiation Overexposure: A Dangerous Form of Medical Malpractice
Americans receive far more medical radiation than ever before. This is because the average lifetime dose of diagnostic radiation has increased sevenfold since 1980, and more than half of all cancer patients receive radiation therapy.
More and more cancer patients are receiving radiation therapy in the form of IMRT (intensity modulated radiation therapy), a rapidly growing therapy. Unfortunately, we believe that the pace of technology is getting ahead of proper, common sense safety protocols.
Although radiation therapy, particularly in the treatment of cancer, has shown great usefulness, the tragic fact remains that when safety rules and protocols for the administration of radiation treatment are violated, the injury and harm can be deadly.
Intensity Modulated Radiation Therapy
IMRT stands for “intensity modulated radiation therapy” and differs substantially from standard linear accelerator radiation technology.
The concept of IMRT radiation therapy is that using this relatively new technology, the radiation oncologist, with the assistance of a medical physicist and radiation therapist, can better target the tumor for radiation and avoid over-radiating normal cell tissue.
In essence, instead of one steady stream of radiation, the patient receives a “modulated” stream of radiation, digitally targeted to mimic the precise dimensions of the tumor. This type of radiation plan is quite complex and involves significant time and effort to avoid over-radiation and the inadvertent radiation of otherwise healthy cell tissue.
The Dangers of IMRT
Although there are some professional guidelines for use of this treatment, IMRT machines and technology are being sold in a largely unregulated marketplace with manufacturers competing by offering the latest in technology, with only a cursory review by the government and hospitals buying the IMRT equipment to lure patients and treat them more quickly.
Problems with the IMRT technology extend to problems with the software that actually runs the machines as well as deficiencies in the experience and licensing of the technicians programming, checking and administering the IMRT machines, particularly, the medical physicists and radiology technicians.
If you are a candidate for this type of treatment, take a moment to review some of the literature concerning IMRT Quality Assurance. You and your doctor should consider all of your options. While IMRT is often safe, it’s not always the best option, and there are dangers and side effects to consider. While many of the above problems have been addressed, there may still be some issues that can make cause the IMRT treatment to go wrong.
Despite the pivotal role medical physicists play in ensuring patient safety, at least 16 states do not require licensing or registration of medical physicists and eight states allow radiation technologists to perform medical imaging (other than mammography use) with no credentials or educational requirements. Fortunately, Medicare and Federal officials are beginning to deal with IMRT and radiation treatment abuses more aggressively.
If your doctor prescribes IMRT, be sure to get at least one or two other opinions. You may be eligible for other and better treatment options.
At Carner & DeVita, we believe that radiation therapy in the great majority of cancer treatments provides benefit to cancer patients. Be we know there is a small minority of situations where radiation therapy is unintentionally misapplied, whether due to software error, or lack of proper training and credentialing of the radiation oncologist, medical physicist and/or radiation technologist.
Unfortunately, in cases involving medical error due to over-radiation, particularly those administered through IMRT technology, the consequences can be devastating for the patient.
Speak with a Radiation Overexposure and Medical Malpractice Lawyer in Long Island Today
Our law firm has taken great interest in prosecuting medical malpractice cases against the responsible parties. If you suspect that yourself or a loved one has suffered malpractice at the hands of a medical professional, such as being over-radiated and injured as a consequence of IMRT radiation therapy or any other form of radiation modality, Carner & DeVita is here to help.
Our medical malpractice lawyers in Long Island have helped victims get the compensation they deserve for over 50 years. Call us at 631-380-4417 or contact us online for a free, no-obligation consultation.
Medical Malpractice Questions and Answers
Who can be held liable for my medical malpractice injury?
Of course, the answer to this question depends greatly upon the unique facts of your case. However, with the help of a Long Island personal injury lawyer, you can sue the doctor who failed to diagnose, misdiagnosed, or performed an unnecessary procedure; the hospital who employed a negligent doctor or nurse, or the pharmaceutical company who failed to warn you of the potential side effects.
Speak with a medical malpractice lawyer in Long Island to understand the full facts of your case and how to go about filing a lawsuit. Call Carner & DeVita at (631) 380-4417 today.
Can I afford a medical malpractice attorney?
Almost all personal injury attorneys work on a contingency fee basis, meaning they only get paid when you do (when you are awarded a settlement or verdict). Carner & DeVita is no different, and you can rest assured that we’ll work as hard as we can to get you equitable compensation.
The traditional contingency fee is one third (33.33%) of the recovered sum (after fees are deducted). Our retainer agreement reads as follows:
“Thirty-three and one-third (33 1/3) percent of the sum recovered as legal fees, whether recovered by suit, settlement or otherwise, plus all costs, disbursements and expenses. The legal fee shall be calculated as a percentage of the recovery after deduction of costs, disbursements and expenses. In the event that I make no monetary recovery, no legal fee shall be due.”
If you have any questions regarding cost, feel free to contact our medical malpractice lawyers in Long Island at (631) 380-4417.
How long do I have to file a lawsuit after a medical malpractice injury?
New York has a specific statute of limitations for medical malpractice cases. A “statute of limitations” is a time limit on your right to file a lawsuit. In New York, a medical malpractice lawsuit must be filed within two years of the date of the accident, although there are a few exceptions.
If the medical malpractice included a failure to diagnose cancer, the statute of limitations changes to two years from the date you learn of the misdiagnosis. If you discover that a foreign object was left in your body after a medical procedure, you have the right to sue, but only if you file within one year of the date you discovered the foreign object, or when you discovered facts that would lead a reasonable person to discover the foreign object, whichever is earlier.
Additionally, if the medical malpractice occurred when the patient was a minor, the statute of limitations is extended to 10 years from the date of the malpractice, unless one of the above (cancer misdiagnosis or foreign object) applies.
The statute of limitations does not run for people who are not sane. In this case, the patient has two years and six months to file a lawsuit from the date that the insanity is cured.
If you have questions about New York’s statute of limitations and how these deadlines may affect your case, call one of our experienced medical malpractice lawyers in Long Island at (631) 380-4417 today.