What is considered surgical malpractice in New York?

Surgical malpractice refers to negligence or substandard care provided by a surgeon or medical professional during a surgical procedure. This can include errors such as performing the wrong surgery, leaving foreign objects in the body, failing to follow proper surgical procedures, or mismanaging post-operative care. If a patient suffers harm as a result of these mistakes, they may have grounds for a malpractice lawsuit.

What are common types of surgical malpractice in New York hospitals?

Surgical malpractice can occur in a variety of ways, including: Wrong-site surgery: Performing surgery on the wrong part of the body. Foreign object retention: Leaving surgical tools or materials, such as sponges, clamps, or surgical scissors, inside the patient. Anesthesia errors: Administering too much or too little anesthesia or failing to monitor a patient properly while under anesthesia. Infections: Failing to maintain a sterile environment during surgery, leading to infection. Improper suturing: Closing the surgical site incorrectly, which can lead to complications such as internal bleeding or infections. Failure to diagnose or recognize complications: Failing to recognize signs of complications like internal bleeding, infection, or blood clots during or after surgery.

How do I know if I have a case of surgical malpractice in New York?

In New York, you may have a surgical malpractice case if the following conditions are met: The surgeon or medical professional owed you a duty of care (i.e., they were responsible for your treatment). The medical professional breached that duty by acting negligently or making an error during surgery. You suffered harm or injury as a result of that negligence. The injury caused you damages, such as medical expenses, lost wages, or pain and suffering. If you believe that you were harmed by a surgeon's error, it’s essential to consult with a medical malpractice lawyer who can help assess whether you have a valid case.

What is the statute of limitations for surgical malpractice in New York?

In New York, the statute of limitations for filing a surgical malpractice lawsuit is generally two and a half years (30 months) from the date of the alleged malpractice. However, there are exceptions: Discovery rule: If you didn’t discover the injury until after the surgery, the clock starts from the date you discovered or reasonably should have discovered the injury. Foreign object retention: If a foreign object was left inside you, the statute of limitations may be extended, allowing you to file the lawsuit even after two and a half years, as long as the object was discovered within a reasonable time frame. Minors: If the patient is a minor, the statute of limitations does not begin until the child turns 18. It is important to contact an attorney as soon as possible to ensure you meet all legal deadlines.

What damages can I recover in a surgical malpractice case in NY?

If you win a surgical malpractice case, you may be entitled to several types of damages, including: Economic damages: These cover measurable losses such as medical bills, lost wages, future medical costs, and rehabilitation expenses. Non-economic damages: These compensate for intangible losses such as pain and suffering, emotional distress, and loss of quality of life. Punitive damages: In cases of extreme negligence or malicious intent, you may be awarded punitive damages, which are intended to punish the wrongdoer and deter similar conduct. The amount of damages awarded depends on the severity of the injury, the extent of financial losses, and other factors related to the case.

Do I need an expert witness for my case?

Yes, expert witnesses are usually required in surgical malpractice cases. These experts—typically surgeons or other medical professionals—can testify to the standard of care in your specific situation, explain how the surgeon's actions deviated from that standard, and provide an opinion on whether the error caused your injuries. Expert testimony is crucial to proving that malpractice occurred, especially in complex surgical cases.

How much does it cost to hire a New York City surgical malpractice lawyer?

Most surgical malpractice lawyers work on a contingency fee basis, which means you don’t have to pay upfront fees. Instead, the attorney takes a percentage of the settlement or award if the case is successful. If the lawyer does not win the case, you don’t owe them any fees. It’s critical to discuss the contingency fee arrangement with your attorney before signing a contract.

How long does a surgical malpractice case in New York take?

The duration of a surgical malpractice case can vary depending on the complexity of the case, the extent of the injuries, and the willingness of the parties to settle. Generally, a malpractice case can take anywhere from several months to a few years to resolve. If the case goes to trial, it may take longer. Your attorney can give you a more accurate timeline based on the specifics of your case.

What should I do if I suspect surgical malpractice in a New York hospital?

If you suspect that you have been a victim of surgical malpractice, you should take these immediate steps: Seek a second opinion: If you are experiencing ongoing issues after surgery, consult with another healthcare professional to confirm if there’s a problem. Gather documentation: Keep all medical records, bills, and notes about your surgery and post-surgical care. These documents are essential for building your case. Consult a lawyer: Contact a New York medical malpractice lawyer with experience in surgical malpractice cases. They can help assess the situation, guide you through the legal process, and determine the best course of action.

How do New York courts determine the standard of care in surgical malpractice cases?

In New York, the standard of care in surgical malpractice cases is determined by what a reasonably competent surgeon in the same field would have done under similar circumstances. The courts rely on expert testimony from other medical professionals to establish whether the surgeon’s actions were appropriate or whether they deviated from the established standard. These expert witnesses must have experience and qualifications in the same specialty as the defendant surgeon.

Can a surgical error during a routine procedure be considered malpractice in New York?

Yes, a surgical error during a routine procedure can be considered malpractice in New York, as long as the error deviates from the expected standard of care and results in harm to the patient. Even routine procedures carry inherent risks, but if a surgeon’s negligence—such as incorrect technique, improper preparation, or failure to address complications—leads to a patient’s injury, it may be deemed malpractice.

Is informed consent required for every surgery in New York?

Yes, informed consent is required for every surgery in New York. The surgeon must provide the patient with detailed information about the proposed procedure, including the potential risks, benefits, and any alternatives. The patient must then voluntarily agree to the surgery. If a surgeon fails to obtain informed consent and the patient suffers harm that could have been prevented or avoided, this may form the basis of a malpractice claim.

How does the burden of proof work in surgical malpractice claims in New York?

In New York, the burden of proof in a surgical malpractice claim lies with the plaintiff (the patient). To succeed in a malpractice claim, the patient must prove, by a preponderance of the evidence, that the surgeon’s actions were negligent and that the negligence directly caused their injuries. This typically requires the testimony of medical experts who can establish that the surgeon failed to meet the standard of care.

Can I file a surgical malpractice claim if I signed a waiver for the surgery in New York?

Yes, you can file a surgical malpractice claim even if you signed a waiver for the surgery in New York. A signed waiver, or informed consent form, acknowledges that the patient understands the risks associated with the surgery. Based on this, it does not absolve the surgeon or medical professionals from liability if they act negligently during the procedure. If a surgical error occurs due to negligence or failure to meet the standard of care, you may still have grounds to pursue a malpractice claim.

Can a surgeon be held responsible for post-surgery complications in New York?

A surgeon can be held responsible for post-surgery complications in New York if those complications were caused by negligence during the procedure. Not all complications are the result of malpractice—some are inherent risks of surgery. Moreover, if the complications arise from errors made during the surgery, such as improper technique, failure to monitor the patient during recovery, or improper care of surgical wounds, the surgeon may be held liable.

How do New York courts handle surgical malpractice cases involving multiple medical professionals?

In cases where multiple medical professionals, such as surgeons, anesthesiologists, and nurses, are involved in a surgical malpractice claim in New York, the court will determine each party's responsibility based on their actions during the procedure. Multiple professionals may share liability if their collective negligence contributed to the injury. The plaintiff’s legal team must establish how each party deviated from the standard of care, and each defendant’s liability will be assessed accordingly.

How does New York law address contributory negligence in surgical malpractice claims?

New York follows a pure comparative negligence rule, which means that if the patient is found to be partially at fault for their injuries, their compensation may be reduced by their percentage of fault. For example, if a patient fails to follow post-operative care instructions and suffers additional harm, the court may reduce their settlement or award accordingly. However, as long as the defendant is found to be at least partially responsible, the patient can still recover damages.

Can I file a surgical malpractice claim if the surgeon made a mistake but I was not harmed?

In order to file a successful surgical malpractice claim, you must have suffered harm due to the surgeon’s mistake. If a surgeon makes an error, but it does not cause you any physical harm or injury, you may not have grounds for a malpractice lawsuit. The key to a malpractice case is proving that the surgeon's mistake led to injury or damage that resulted in measurable losses, such as additional medical treatment, lost wages, or pain and suffering.

How can I prove that surgical malpractice occurred?

Proving surgical malpractice typically requires several key elements: Evidence of a breach of duty: You must show that the surgeon failed to meet the standard of care that a competent surgeon would have followed under similar circumstances. Expert testimony: Medical experts, such as other surgeons or specialists, are often needed to explain the standard of care in the specific type of surgery you underwent and how the surgeon’s actions deviated from that standard. Causation: You must prove that the surgeon’s mistake directly caused the injury or harm you suffered. This can be complex, as other factors, such as underlying health conditions, may also contribute to the injury. Documented injury: Medical records, test results, and other documentation that demonstrate the harm caused by the surgeon's error are essential in proving your case.

What should I do if my surgical wound becomes infected?

If your surgical wound becomes infected, it is important to seek immediate medical attention. Infections can result from improper sterilization, failure to follow post-surgical care instructions, or the surgeon’s error during the procedure. If the infection was caused by surgical malpractice, it’s crucial to document all medical visits and treatments for the infection, as this may become key evidence in your malpractice case. Consult with a lawyer if you believe the infection is the result of a surgeon’s mistake.

Can surgical malpractice cases be settled out of court?

Yes, many surgical malpractice cases are settled outside of court. A settlement may occur after negotiation between your attorney and the defendant’s legal team. Settlements can be beneficial because they allow both parties to avoid the time, expense, and uncertainty of a trial. However, settlements often require you to agree to a confidentiality clause and may result in a lower payout than what could be achieved through a trial. Your attorney will discuss the pros and cons of settlement versus going to trial and advise you on the best course of action based on your unique situation.

What happens if a surgeon admits to making a mistake?

If a surgeon admits to making a mistake, it can significantly strengthen your malpractice case. However, an admission of error does not automatically result in a successful lawsuit, as you still need to prove that the mistake caused harm and resulted in damages. In some cases, a surgeon's admission of error may lead to an early settlement offer, but this is not guaranteed. It is important to work with an attorney who can guide you through the legal process and ensure that your rights are protected, regardless of the surgeon’s admission.

Can I sue the hospital for surgical malpractice?

In some cases, you may be able to sue the hospital if the surgical malpractice was a result of the hospital’s negligence. For example, if the hospital failed to provide appropriate staffing, allowed an unqualified surgeon to perform the procedure, or didn’t maintain a sterile environment, the hospital may be held liable. Based on this, most malpractice claims are filed against the individual surgeon or healthcare provider who directly performed the surgery. A skilled lawyer can help determine whether the hospital or other parties should be included in your lawsuit.

What is the difference between surgical malpractice and a bad surgical outcome?

A bad surgical outcome is a result of a complication or risk inherent in the surgery itself, whereas surgical malpractice involves negligence or substandard care. Not every poor outcome or complication after surgery is due to malpractice. For example, some surgeries carry a certain degree of risk, and complications can arise despite the surgeon’s best efforts. Malpractice occurs when a healthcare professional deviates from the accepted standard of care, resulting in harm that could have been prevented. A malpractice lawyer can help determine whether your case involves a bad outcome or negligence.

Can a surgical malpractice case be filed if the surgeon is no longer practicing?

Yes, you can file a surgical malpractice case even if the surgeon is no longer practicing. If the surgeon’s mistake caused harm, they or their malpractice insurance carrier may still be held liable for damages. In some cases, the surgeon’s former employer or hospital may also be responsible. Stemming from this, it may be more difficult to pursue a case if the surgeon does not have malpractice insurance or is no longer practicing, as there may be limited assets available for compensation. It’s crucial to consult with a lawyer who can investigate the specifics of your case and determine the best course of action.

How long does it take to settle a surgical malpractice case?

The timeline for settling a surgical malpractice case can vary depending on the complexity of the case, the extent of the injuries, and whether the parties are able to reach a settlement agreement. On average, a malpractice case can take anywhere from several months to a few years to resolve. If the case goes to trial, it can take even longer. Your attorney will keep you updated on the progress of your case and help you understand the expected timeline based on the specific facts of your case.

How does New York’s “Statute of Limitations” impact my ability to file a surgical malpractice claim?

In New York, the Statute of Limitations for filing a surgical malpractice claim is 2.5 years from the date the malpractice occurred. Pertaining to this, if the injury was not discovered until later (such as in cases of surgical errors that only become evident after some time), the discovery rule allows the statute of limitations to start from the date the injury is discovered, or should have reasonably been discovered. If the case involves a child under the age of 18, the statute of limitations is extended to a maximum of 10 years from the date of the injury. This flexibility is crucial for surgical malpractice cases where the harm may not become apparent until long after the procedure was performed.

Can I sue for emotional distress caused by surgical malpractice?

Yes, you may be able to sue for emotional distress caused by surgical malpractice. Emotional distress can include anxiety, depression, fear, and other psychological effects caused by the malpractice. This is often considered part of non-economic damages, which may be awarded in addition to compensation for physical injuries. In some cases, emotional distress may be the primary injury in a malpractice claim, especially if the physical harm was minimal but the emotional toll was significant. Your lawyer can help evaluate the extent of emotional distress and include it in your claim for damages.

What types of compensation can I receive in a surgical malpractice case?

In a surgical malpractice case, you may be entitled to several types of compensation, including: Economic damages: These cover actual financial losses, such as medical bills, lost wages, future medical treatment, and any costs directly related to your injury. Non-economic damages: These are intended to compensate for intangible losses, such as pain and suffering, emotional distress, loss of enjoyment of life, and disfigurement or scarring. Punitive damages: In cases of particularly egregious conduct, a court may award punitive damages to punish the responsible party and deter similar behavior in the future. However, punitive damages are rare in medical malpractice cases and typically only apply if the surgeon’s conduct was grossly negligent or intentional. Your attorney will help calculate the total damages you may be entitled to and work to ensure you receive fair compensation for your injuries.

Can I file a surgical malpractice claim against a surgeon if I signed a consent form?

Signing a consent form does not waive your right to file a surgical malpractice claim. While a consent form acknowledges that you understand the risks associated with the surgery, it does not absolve the surgeon or medical professionals from liability if they make a mistake or fail to meet the standard of care. If the surgeon’s error resulted in harm that falls outside of the typical risks disclosed in the consent form, you may still have grounds to pursue a malpractice claim.

Do I need to hire a medical expert to file a surgical malpractice claim?

Yes, in most surgical malpractice cases, you will need to hire a medical expert to establish that the surgeon’s actions deviated from the accepted standard of care. Medical experts, usually other surgeons or specialists, can review the facts of your case and provide testimony about how the surgeon’s actions caused harm. In New York, a certificate of merit from a medical expert is often required when filing a malpractice claim to show that the claim has merit before proceeding with litigation.

What if I cannot afford a lawyer to pursue my surgical malpractice case?

Many surgical malpractice lawyers work on a contingency fee basis, meaning they only get paid if you win your case. The attorney will take a percentage of the settlement or verdict amount as their fee. This allows individuals who cannot afford hourly legal fees to still access quality legal representation. Make sure to ask about the contingency fee structure during your initial consultation, as the percentage may vary depending on the firm.

What should I expect during the discovery phase of my surgical malpractice case?

The discovery phase is an essential part of any malpractice lawsuit, where both parties exchange information relevant to the case. During this phase, the defense and the plaintiff will collect evidence through various methods, such as: Interrogatories: Written questions that must be answered under oath. Depositions: Oral testimony taken under oath from witnesses, including medical experts and professionals involved in your case. Document production: Both sides will exchange medical records, hospital records, surgical notes, and other pertinent documents. The discovery phase can take several months and is critical for building your case. Your attorney will guide you through this process, helping you gather the necessary documents and prepare for depositions.

Can I file a surgical malpractice case if the surgeon is employed by a hospital?

Yes, you can file a surgical malpractice lawsuit even if the surgeon is employed by a hospital. In many cases, hospitals can be held vicariously liable for the actions of their employees if the surgeon was acting within the scope of their employment when the malpractice occurred. Additionally, the hospital may be held liable for its own negligence, such as failing to properly credential the surgeon or maintain a sterile environment. Your attorney will help determine the appropriate parties to sue and ensure that you hold the responsible parties accountable.

What happens if I receive medical care that makes my condition worse after surgery?

If the medical care you received after surgery makes your condition worse, this could be grounds for a separate malpractice claim, known as post-surgical negligence. For example, if the doctor fails to monitor your recovery properly or administers improper medication that worsens your condition, you may be able to hold them accountable. It’s essential to document all follow-up treatments and discuss any worsening conditions with your attorney to determine if the new harm is related to the original surgical malpractice.

How long will it take for a surgical malpractice case to reach trial?

The length of time for a surgical malpractice case to reach trial can vary significantly. On average, a case may take anywhere from 18 months to 3 years to go to trial, depending on factors such as the complexity of the case, whether settlement negotiations are ongoing, and court schedules. If your case settles out of court, it may resolve more quickly, but if it goes to trial, it may take longer due to the preparation involved in presenting expert testimony and evidence.

What if I am unable to work due to a surgical malpractice injury?

If you are unable to work due to injuries sustained in a surgical malpractice incident, you may be able to recover compensation for your lost wages and future earning potential. This includes the income you lost during your recovery period, as well as any long-term or permanent loss of earning capacity if your injuries prevent you from returning to work or limit the type of work you can do. Your attorney will help calculate the financial impact of your lost income and ensure that it is factored into your claim for damages.

Is there a difference between medical malpractice and surgical malpractice?

Surgical malpractice is a specific type of medical malpractice that occurs during a surgical procedure. While all surgical malpractice is medical malpractice, not all medical malpractice cases involve surgery. Medical malpractice refers to errors made by healthcare providers in any context, such as diagnosing, treating, or prescribing medications. Surgical malpractice specifically deals with mistakes made during the surgery itself, such as wrong-site surgery, surgical instrument errors, or leaving objects inside the body.

What happens if the surgeon tries to settle before going to trial?

If the surgeon or their insurance company offers a settlement before going to trial, your attorney will review the offer to determine whether it fairly compensates you for your injuries. While settlements are often quicker and less expensive than going to trial, it’s remarkable to consider whether the settlement amount fully covers your medical expenses, lost wages, pain and suffering, and any long-term consequences of the injury. If the settlement offer is inadequate, your attorney will negotiate or proceed to trial to pursue a higher amount.

Can surgical malpractice cases be brought against non-surgeons, like anesthesiologists or surgical nurses?

Yes, surgical malpractice cases can involve other medical professionals who were part of the surgical team. While the surgeon is typically the primary focus of a surgical malpractice case, other professionals, such as anesthesiologists, surgical nurses, and surgical assistants, can be held accountable if their actions or negligence contributed to the injury. For instance, an anesthesiologist who administers the wrong dosage or fails to monitor the patient’s vital signs during surgery could be liable for malpractice. Similarly, a nurse who fails to properly assist in the surgical procedure or does not adhere to proper sterile techniques may also be held responsible.

What is "delayed surgical malpractice" and how does it affect my case?

Delayed surgical malpractice refers to situations where harm caused by a surgical error becomes apparent only after a significant delay, often months or even years later. For example, a surgeon might inadvertently leave a surgical instrument inside a patient, but the symptoms (such as infection or internal bleeding) might not appear until much later. In such cases, patients may have difficulty connecting the malpractice to their symptoms, which complicates the case. In New York, the statute of limitations may be extended if the injury was not immediately discoverable, giving the patient more time to file a claim. Proving delayed surgical malpractice often requires strong expert testimony linking the delayed symptoms to the original surgery.

Can a surgeon be held liable for malpractice if I consented to a surgery but was not fully informed about potential risks?

Yes, a surgeon can be held liable for malpractice if the patient was not properly informed about the risks associated with the procedure, even if the patient signed a consent form. Informed consent is a critical component of any surgery. Surgeons are required to explain the potential risks, benefits, and alternatives to a procedure. If a surgeon fails to disclose significant risks, and the patient suffers harm as a result of those undisclosed risks, the surgeon may be held liable for lack of informed consent. This is a separate claim from surgical negligence, and the patient may be entitled to compensation for the injury caused by the failure to inform.

How does "failure to warn" differ from traditional surgical malpractice?

Failure to warn is a specific subset of surgical malpractice involving a surgeon’s failure to inform a patient of the risks of a procedure. Unlike traditional malpractice, which focuses on errors made during the surgery itself, failure to warn centers on the preoperative phase, where a surgeon fails to explain potential risks or complications. For example, if a surgeon does not inform a patient about a possible complication like infection or blood clots that could arise during or after surgery, the patient may be able to claim that the surgeon failed to properly warn them. This could result in a lawsuit based on the surgeon’s breach of the duty to inform.

Can a surgical malpractice case be pursued against a robot-assisted surgery system if it malfunctions?

Yes, it is possible to pursue a surgical malpractice claim if a robot-assisted surgery system malfunctions and causes harm. With the increasing use of robotic surgical systems, such as the da Vinci Surgical System, these machines are being integrated into many surgical procedures. If the machine malfunctions—whether due to faulty programming, malfunctioning parts, or user error by the surgeon operating the system—resulting in patient harm, the surgeon, the hospital, or the manufacturer of the surgical robot may be liable for malpractice. These types of claims require specialized expert testimony to prove that the malfunction led to the injury and that the defendant was responsible for the malfunction.

Can a surgeon be held liable for malpractice if they ignored a patient's pre-existing condition that worsened after surgery?

Yes, if a surgeon fails to account for or properly manage a patient’s pre-existing medical conditions, which leads to worsened outcomes after surgery, the surgeon can be held liable for malpractice. Surgeons are expected to evaluate a patient’s full medical history, including any pre-existing conditions, before proceeding with surgery. If a patient has conditions like diabetes, heart disease, or bleeding disorders that were not taken into account, and the surgery leads to complications due to those conditions, the surgeon’s failure to consider or manage those conditions may be grounds for a malpractice claim.

What is "surgeon fatigue" and can it be a valid reason for malpractice?

Surgeon fatigue refers to the physical and mental exhaustion a surgeon experiences. This can lead to impaired judgment, slower reaction times, and errors during surgery. If a surgeon performs a procedure while fatigued, particularly if they work long hours or multiple shifts without sufficient rest, this can increase the risk of errors. Surgeons are required to be in the proper physical and mental condition to safely perform surgery. If fatigue leads to an error that causes harm to the patient, it could be a valid basis for a surgical malpractice claim. Proving that fatigue contributed to the error can be difficult and typically requires expert testimony about the surgeon’s condition and the impact of their fatigue.

Can a surgical error be attributed to inadequate hospital staffing or improper procedures?

Yes, in some cases, surgical errors can be traced back to hospital-related issues, such as insufficient staffing, lack of proper training, or failure to follow established protocols and procedures. If a hospital fails to provide the necessary resources, such as qualified medical staff, or does not ensure that surgeons and their teams are properly trained in the latest surgical techniques, the hospital can be held liable for contributing to a surgical error. This can include situations where there are too few nurses or assistants, improper sterilization procedures, or failure to provide the correct equipment for the surgery. In these cases, both the surgeon and the hospital may be named in a malpractice lawsuit.

Can my surgical malpractice case involve multiple defendants, such as the surgeon, hospital, and medical equipment manufacturers?

Yes, a surgical malpractice case can involve multiple defendants if several parties contributed to the patient’s injury. For example, the surgeon might be directly responsible for making an error during the surgery, the hospital might be responsible for improper staffing or failure to maintain safe surgical conditions, and the manufacturer of medical equipment could be responsible if faulty equipment malfunctioned during the procedure. In cases involving multiple defendants, each party’s responsibility for the injury will need to be clearly established. This type of case often involves complex litigation and requires careful coordination among various experts to prove fault.

What role does the surgeon’s reputation or history play in a surgical malpractice case?

The surgeon’s reputation or history of previous malpractice claims can sometimes play a role in a malpractice case, though it does not necessarily determine the outcome. In some cases, evidence that the surgeon has a history of repeated errors or has been disciplined by medical boards may be used to show a pattern of negligence or incompetence. Moreover, past claims alone are not sufficient to prove negligence in a new case; the plaintiff must still establish that the specific incident of malpractice caused harm. That being said, a surgeon’s reputation can influence the case by affecting the credibility of their testimony or actions in the courtroom.

What is the "Affidavit of Merit" and why is it required for a surgical malpractice claim in New York?

In New York, an Affidavit of Merit is a document that must be filed along with a surgical malpractice complaint. This affidavit, which is typically signed by a medical expert, attests that the expert believes there is a valid case of malpractice based on their review of the facts and medical records. It serves as an initial filter to prevent frivolous lawsuits and ensures that there is a legitimate basis for the claim before proceeding with legal action. The affidavit must be filed within 90 days of initiating the claim, or the case may be dismissed. This requirement is designed to protect healthcare providers from baseless lawsuits while allowing valid claims to move forward.

Can I file a surgical malpractice claim in New York if the injury was discovered after the statute of limitations has passed?

In New York, the general statute of limitations for filing a surgical malpractice claim is 2.5 years from the date of the alleged malpractice. In relation to this, if the injury was not discovered immediately, you may still have time to file the claim under the discovery rule. This rule allows the statute of limitations to begin from the date the injury was discovered, or should have been discovered, with reasonable diligence. For example, if a surgical instrument was left inside the patient, symptoms like infection might not appear until months later. In such cases, the clock for filing the lawsuit starts when the issue is discovered, extending the timeline beyond the typical 2.5 years.

Are Medical Malpractice Lawsuit Settlements Taxable?

If you make it through what can sometimes become a long and challenging legal process and are finally set to receive much-needed compensation for your medical malpractice case, you'll likely feel elated and relieved when the settlement funds finally arrive. But before you run out and spend it all to pay accumulated bills or other expenses, it's important to realize that a portion of your settlement may belong to Uncle Sam. Talking to an experienced personal injury attorney can help clarify your obligations to the IRS.

What's Taxable

What is and is not taxable in medical malpractice lawsuit settlements depends on what, specifically, the funds have been designated to pay for. In general, the portion of a settlement designed to compensate you for what you already spent for medical care for physical injuries is not taxable. Other elements of a settlement are, however, taxable, including:

Lost wages
Punitive damages
Medical expenses if you've already deducted them on a previous tax return
Interest on an award accumulated during the time your case was pending
Interest on an award accumulated during the time a defendant delayed payment

In other words, any portion of your settlement that could be considered to be income that is not directly related to medical expense reimbursement is probably taxable.

What's Not Taxable

Settlement funds that are designated for physical injuries and certain treatments for emotional distress are not considered to be taxable. Funds designated as compensation for pain and suffering arising from emotional distress, however, are taxable. If you've already deducted medical expenses for a given year on a previous tax return, however, those medical expenses are taxable.

Know The Tax Implications Of Your Settlement

At Rosenberg, Minc, Falkoff & Wolff, LLP, our lawyers can provide perspective about the likely tax implications of a potential settlement. Each case is different, and so it is important to get information specific to your situation. For a free initial evaluation of your case, call our New York office at 212-863-9101 local or 212-344-1000 toll free, or submit information to our online form to tell us more about your situation.

Where do I start… As a client of a malpractice case, I did not know what to expect. However, the support from Rosenberg, Minc, Falkoff & Wolff Law firm made me feel at ease. The dedication, compassion, and overwhelming hard work that Gary Silverstein put in was undeniably AMAZING. Seeing how hard and diligent Gary worked on my case made me realize that I had the best team on my side. The support from the entire legal team was unbelievable. There were continuous updates, follow-ups, most importantly assurance of any concerns I had before and during my trial. In fact, during the trial Gary showed a vast form of knowledge, strategic and responsive thinking, and most importantly wisdom. His dedication was unbelievable, and not one time did I not feel involved. I am truly appreciative for all that Rosenberg, Minc, Falkoff & Wolff Law have done, but mostly I am appreciative of the amazing staff they have. Lorraine and Sharon played a big part in my case, and I am truly thankful for their support and hard work. I am truly happy to have been a client of Rosenberg, Minc, Falkoff & Wolff Law. I highly recommend them and will continuously refer them, Thank you RMFW!