Medical malpractice is more than “not liking” the results of a procedure. It’s any act (or failure to act, also known as an “omission”) performed by a physician, nurse, or other medical professional that deviates from the standard of care and causes harm to a patient.
“Standard of care” is what a reasonably cautious doctor would do in the same or similar situation.
The standard of care for a cancer patient could include a recommendation for chemotherapy. While every cancer patient has different needs, a reasonable doctor with the same knowledge and experience would make the same decision.
When a medical professional deviates from the standard of care and causes harm to a patient due to action or inaction, they may be committing malpractice. For instance, failing to provide a patient with reasonable and relevant information about their procedure could be considered as a failure to provide informed consent.
Our Suffolk County attorneys at Carner & Devita have more than 50 years of experience in handling medical malpractice cases. Let us represent you and work to get the compensation you deserve.
Call us today at 631-380-4417 or contact us online for a free, no-obligation consultation.
Steps to take after experiencing malpractice
1. Switch providers by asking for a referral
After suffering harm at the hands of a doctor, you probably have valid distrust in the system. However, it’s very important that you seek treatment for your injury or worsened condition. Ask for a referral to see a new physician. You don’t have to speak to your current physician if you don’t want to; simply call their office and speak with a receptionist. They’ll ask the doctor for the referral.
2. Obtain a copy of your medical records
Your medical records will likely be the most important piece of evidence in your case. Don’t wait to obtain your records; don’t even wait until you speak with an attorney. As soon as you realize you were injured, call the doctor’s office and request all of your medical records. If the office refuses, you should hire an attorney who will demand release of the records.
In New York, physicians must hold on to patient records for at least six years. Hospitals must retain records for at least six years from the date of discharge. But don’t wait – the deadline for most medical malpractice cases is two and a half years, so it’s best to get your records as soon as you can.
3. Meet with a Suffolk County medical malpractice attorney
Hospitals have a battalion of attorneys on their side, and insurance will do just about anything they can to deny your claim. That level of likely resistance makes it crucial for you to speak with an experienced attorney as soon as you can. A Long Island medical malpractice lawyer at Carner & DeVita will help determine if you have a valid claim, and we’ll get started on building a seamless case if you do. Don’t wait; call our firm today for the best chance of full compensation.
4. Report the incident to the appropriate licensing board
Help prevent further harm by reporting the physician or healthcare professional to the appropriate New York licensing board. To file a complaint against a physician, physician assistant (PA) or specialist assistant, call the Office of Professional Medical Conduct within the New York State Department of Health at (518) 402-0836 or (800) 663-6114.
5. Manage your condition carefully
You’ll probably be at least somewhat distrustful of doctors after suffering harm, but it’s very important that you seek and follow your new physician’s guidance. Swearing off medical attention will only make things worse, and it’s important to note that malpractice is rare in modern medicine.
Don’t assume doctors are “out to get you” or don’t care about your condition. The vast majority of physicians are compassionate, attentive people who want to help. Seek treatment first – your well-being is the priority.
Types of medical malpractice
Failure to diagnose
Failure to diagnose encompasses several issues. These include:
- Failing to test for a possible medical condition
- Interpreting test results incorrectly
- Failing to recognize the urgency of a patient’s medical condition
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 may be misread by inexperienced lab technicians or by doctors who are inexperienced with a certain disease or ailment.
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
Unfortunately, some doctors motivated by profit will order a surgery that isn’t actually needed, putting 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.
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.
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.
Poor follow-up or aftercare
A physician’s job isn’t over when the procedure is. 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 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
It’s crucial for medical professionals 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.
Malpractice cases have special deadlines. Make sure you file your claim in time
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.
- Exception: Cancer misdiagnosis – 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.
- Exception: Foreign object – 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.
- Exception: Minor patient – 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.
- Exception: Insanity – 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.
Potential damages to claim
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.
Multiple parties may be liable for your injury
Depending on the facts of your case, one or more of the following parties may be liable (responsible) for your injury:
- Physician whose decisions or lack of decision caused your injury
- Hospital who employed a negligent doctor or nurse
- Pharmaceutical company that 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.
How our Suffolk County attorneys prove malpractice
In order to prove a case for medical malpractice, your attorney must show four things:
- Doctor-patient relationship – You can’t sue a random doctor for advice that you overheard 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.
- Negligence – You can’t sue a doctor just because you’re unhappy with the result. You’ll have to prove that the doctor was negligent. Typically, a board will determine whether another doctor would have reasonably made the same or similar decisions under the same circumstances.
- Negligence caused your injury – There must be a direct link between the treatment or procedure you received and your new injury or illness. For instance, a patient who suffers infection because their doctor left a tool inside their abdomen during surgery can establish a direct link between the “treatment” and injury.
- The injury resulted in 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.
Cost of hiring a medical malpractice attorney
Carner & DeVita works on a contingency fee basis, meaning we only get paid when you do (when you are awarded a settlement or verdict).
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.”
Our Suffolk County medical malpractice attorneys are here to help
For over 50 years, the Suffolk County personal injury lawyers at Carner & DeVita have helped injured people get the compensation they deserve. If you suspect that yourself or a loved one has suffered malpractice at the hands of a medical professional, our experienced lawyers are here to help.
Call us at (631) 380-4417 or contact us online for a free, no-obligation consultation.
Medical Malpractice FAQs
What kinds of damages are available to the plaintiff in a medical malpractice lawsuit?