Medical Malpractice Attorney in Brooklyn

Many people are under the false assumption that if anything goes wrong during a medical procedure, the doctor or hospital is liable for medical malpractice. This simply isn’t the case. In order to succeed on a medical malpractice claim, certain elements must be met. 

Duty of Care. The first element of a medical malpractice case is “duty of care.” In order to hold a medical professional or a hospital liable, you must first prove that they owed you a duty of care. In order to establish that the defendant owed a duty of care, you must prove that a doctor-patient relationship existed. Therefore, that medical professional had a duty to use reasonable care and diligence in treating you. They must meet the standard of care. This means that another medical professional with equivalent skill and competence would have provided the same care or followed the same guidelines under identical circumstances. While this can sound simple, it actually ends up being quite subjective because those same exact circumstances will never again occur, so it can be difficult to gauge how another medical professional would have proceeded. This is typically proven through expert testimony from other medical professionals. 

Breach. The second element in a medical malpractice case is a breach of the duty of care. To win a medical malpractice claim, you must prove that the medical professional deviated from the acceptable standard of care. Breaches can occur in a number of situations, such as failure to diagnose, failure to properly identify or treat an illness or injury, errors made during a surgical procedure, failure to gather a patient’s medical history, and a failure to order tests that could explain symptoms. If another medical professional under the same circumstances would have ordered tests or wouldn’t have made the same errors, you may be able to succeed in your medical malpractice claim. 

Causation. Next, you must prove that the medical professional’s negligence actually caused or contributed to causing the injury. If a surgeon operates on you and there is a negative outcome, that’s not enough to show that you are entitled to anything through your medical malpractice claim. It’s also not enough to simply show that the surgeon was negligent. Their negligence has to be the reason for the injury or contributed to the specific injury that you received. If the surgeon failed to take a proper medical history and your injury was entirely unrelated to that mistake, this is not enough to prove causation. 

Damages. Finally, you must prove that you actually suffered losses or damages as a result of the medical malpractice. Damages typically include medical expenses, lost income from being unable to work, scarring and disfigurement, permanent injury or disability, physical pain and suffering, and mental anguish from the injuries and experience, among others. 

In some circumstances, you might be injured and know that the only way it could’ve happened was through a medical professional’s negligence, but you are unable to actually prove that negligence. The doctrine of res ipsa loquitur—which means the thing speaks for itself—allows a jury to use their common sense in some circumstances where it’s clear that something negligent occurred and caused injuries, but the details are less clear and there might not be proof that negligence occurred. In a medical malpractice case, for example, a victim might be able to succeed in their claim if they were injured because the surgeon operated on the wrong part of the body. The patient was under anesthesia and doesn’t know what happened, but it’s so obvious that the error was made and that it was negligent that the jury can simply use their past experiences, common sense, and shared standards to determine that medical malpractice occurred. This argument can be made in addition to trying to prove what the negligence actually was.

Three Main Elements

There are 3 main elements to the res ipsa loquitur doctrine. First, the accident or injury wouldn’t have occurred without negligence. Second, only one defendant was in exclusive control of the instrumentality that caused the injury. Third, the victim was not at all responsible for the injury that occurred. When these 3 elements are proven, a jury can determine that negligence occurred even without actual proof that it occurred.

When filing a medical malpractice claim, arguably the most important part is to make sure you file your claim on time. In the state of New York, you must file your claim within 2 and a half years of the date of the injury. If your injury occurred in a course of treatment and not just one incident, the statute of limitations doesn’t begin until the date of your last treatment. 

Discovery Rule

New York also has what’s called the discovery rule, which is commonly used in two very specific situations. 

When you are alleging medical malpractice based on a foreign object being left in your body, you must file your claim within one year from the date that you discovered the object, or you learn facts that would reasonably lead to this discovery, whichever is sooner. 

If your medical malpractice claim is based on a negligent failure to diagnose cancer, you must file your claim within 2 and a half years of the date you knew or should’ve known about the negligence and it caused your injuries (but no later than 7 years from the date of the negligence) or within 2 and a half years of the last treatment you received in a continuous course of treatment, whichever is later.

Minors

Another exception to the statute of limitations is when a minor is involved. If a child under the age of 18 experiences injuries due to a medical professional’s negligence, the statute of limitations doesn’t begin until the minor turns 18. However, the negligence must have occurred within the last 10 years, so it is possible that the statute of limitations could end before a minor turns 18. For example, if the medical malpractice occurred when the child was 5 years old, the statute of limitations runs when they turn 15. 

Many people wonder if they can recover compensation due to medical negligence if they were also partially at fault for their injuries. New York is a pure comparative negligence state. This means that you can still recover compensation if you were at fault, even if you were 99 percent at fault. The percentage of your responsibility for the injuries will be calculated, and any compensation you are awarded will be reduced by that percentage. For example, you were awarded $100,000 at trial but it is determined that you were 40 percent at fault. Your compensation will be reduced by 40 percent, so you will take home $60,000. Even if you are at greater fault than the defendant, you can still recover compensation. 

The average of a medical malpractice claim is between two and three years. However, all cases are different, so there’s no way to determine the exact amount of time a case will take. However, there are some commonalities among all cases. If your case goes to trial, it will almost certainly take significantly longer than if you are able to settle the case with the defendant outside of court. 

Additionally, the more complex the case, the longer it will take. If there are multiple defendants and severe injuries that are long-lasting, this can prolong the case. With multiple defendants, there might be more discovery to obtain, which can inherently make the case last longer. The more evidence that needs to be gathered and analyzed, the longer it will take.

When you suffer injuries that are long-term, it can be difficult to determine what compensation you’re actually entitled to because there was no end to your injury. This can lead victims to push their case off a bit to see if they can determine what kind of care they will need in the future and how much compensation they believe they are entitled to. 

The majority of medical malpractice attorneys handle cases on a contingency fee basis. This means that you don’t have to pay the lawyer unless they win your case. You aren’t required to pay anything upfront, which mitigates the risk to you. When your case is settled or you win your claim, the attorney you hired will take a percentage of your award. It’s usually between 30 and 40 percent. While this might seem like a lot, it’s important to realize that the lawyer takes on all the risk of the case. They hire medical experts, conduct investigations, and spend time putting the case together. If they don’t win, they don’t receive any compensation for that whatsoever. It’s also worth noting that when an attorney is working on a contingency fee basis, they will do whatever they can to make sure you receive as much compensation as possible. Their payment is directly tied to how much they can recover for you, so you can be certain that you are working together and have the same desired outcome.  

When you hire experienced medical malpractice lawyers, it’s probably safe to say that they will do their best no matter what the payment schedule looks like, but if you pay someone a flat rate or are paying them hourly, they have less motivation to get you the most money possible. There might be a thought in the back of their mind that the sooner they resolve the case, the sooner they can pick up another case, especially with a flat rate payment.

At Morgan & Morgan, we know how to provide you with the best chances of success in your medical malpractice claim. We have been handling these types of cases for decades, and we would be honored to assist you. When you hire us, you’re getting the resources of a large firm with the personability of a smaller firm. We will always keep you updated on how your claim is going. We will handle the legal aspects of the claim so you and your family can handle the emotional side and work through this difficult time with as little stress as possible. If you or a loved one needs help with a medical malpractice claim, contact Morgan & Morgan today for a free consultation.