What is "Medical Malpractice"?

Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or safety on the part of a health care provider that causes harm to a patient. Examples of medical malpractice are too numerous to list. Medical malpractice can include, however, misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, prescription errors, etc. In many instances, medical malpractice is not obvious to a lay-person and requires the review and analysis by medical experts.

What must be shown to prevail in a medical malpractice case?

While there are various types of medical malpractice claims, generally speaking, a claimant must usually show the following: The health care provider owed a duty to the patient The health care provider breached that duty The patient suffered an injury The patient's injury was a proximate cause of the health care provider's breach A physician owes a duty to a patient once a "doctor-patient" relationship has been formed. Such a relationship is usually formed when the physician agrees to care for the patient. Nonetheless, even if it is established that a duty existed and the health care provider breached that duty (e.g. failed to meet the requisite standard of care), a claimant may not recover unless the claimant suffered injuries that were a direct result of the breach. If the breach resulted in no harm to the patient, a claimant generally has no right to recovery.

What is the first step in pursuing a medical malpractice claim?

The first step in pursuing a medical malpractice case is suspecting that one may have been the victim of medical malpractice. While not every bad result is due to medical malpractice, one who develops a "gut feeling" that something was wrong should consult a qualified attorney to review the matter, who often will consult with medical professionals. This process often involves the obtaining and review of medical records and other pertinent information. If it is determined that one has a good case, the next step is usually to give written notice of the claim to the individuals or entities that are believed to have committed the medical malpractice.

I have no idea how much money I should ask for or expect. What kind of expenses are typically included in a settlement?

A typical medical malpractice claim will include compensation for pain and suffering, payment of medical expenses for treating the injury caused by the malpractice and reimbursement for any past, present or future financial losses that you have incurred as a result of the malpractice. However, this varies by state.

Have I waived my rights because I signed a consent form?

This is a question asked by many. A consent form does not give the health care provider a license to commit malpractice. While the execution of a typical consent form indicates acknowledgment of stated risks and complications associated with a given treatment or procedure, it does not relieve the health care provider from his or her duty of meeting the standard of care associated with such treatment or procedure.

I've heard that lawsuits take a long time. Is that true with malpractice cases?

Malpractice cases don't necessarily take any longer than other cases, but doctors, hospitals, and insurance companies often try to drag them out. Malpractice claims are often delayed because the doctor or hospital knows they will ultimately have to pay. In other words, they know that they made a horrible mistake. We work hard to prevent these delays.

I have no idea how much money I should ask for or expect. What kind of expenses are typically included in a settlement?

A typical medical malpractice claim will include compensation for pain and suffering, payment of medical expenses for treating the injury caused by the malpractice and reimbursement for any past, present or future financial losses that you have incurred as a result of the malpractice. However, this varies by state.

It's taken me several months to work up the nerve to do anything about my situation. Am I running out of time to file a lawsuit against my doctor?

Statutes of limitations govern the length of time one has to file a lawsuit or be forever barred from pursuing such claim. Each state has different statute of limitation periods which apply to personal injury cases under various circumstances. In some cases, the statute of limitations may be as short as one year, while under different circumstances, it may be eight years or more. Many factors bear upon when the applicable statute of limitations period expires including the age of the plaintiff, the type of personal injury claim, the particular facts giving rise to the injury, and others. One must make absolute certain that they are aware of when their statute of limitations period expires, or risk jeopardizing their legal rights. An experienced personal injury lawyer can be of assistance in this regard.

Nothing serious has happened to me yet, but I'm beginning to question my doctor's care. What can I do to prevent malpractice?

The best advice we can give to you is to listen to your body. If your doctor tells you that you're fine, but you don't feel fine, make another appointment. As you are listening to your body, educate yourself on what's happening. Use the library and the Internet to find out about your symptoms and what tests are usually run for them. Have your doctor write everything down for you. If your doctor denies you a particular test or a referral to a specialist, have the doctor explain in writing the reason for the denial. If the doctor won't write it down, you should seek counsel by a qualified attorney.

How to Calculate a Settlement for Pain and Suffering

A majority of civil litigation is made up of personal injury lawsuits. Some common causes include traffic accidents, medical malpractice, slip and fall, defective products, construction accidents and dog bites. The National Highway Traffic Safety Administration reported that there are 6 million auto accidents every year across the US – an average of about one auto accident every 10 seconds. These accidents cause 3 million injuries every year, many of which are permanent injuries. Approximately 40,000 deaths also occur due to traffic accidents.

Calculating Pain and Suffering Settlement

In any personal injury case, from an auto accident to a case of slip and fall, two main categories of damages are available to the injured person – general or non-economic damages and special or economic damages. General damages include pain and suffering, meaning physical pain and discomfort, as well as anxiety, stress and emotional distress that is associated with the accident and the injuries you sustained. Special damages are losses from the accident or injury that can be easily calculated – medical bills, loss of income because of missed time at work, damage to property as well as any other out-of-pocket losses. In personal injury cases, these types of damages are what determine the compensation awarded to the winning plaintiff after a trial.

How to Quantify Pain and Suffering

Pinning a dollar amount on general damages is not an easy task. But insurance companies take a number of approaches when pain and suffering is calculated as part of the injury settlement. The two most common approaches are the daily rate, or “per diem” method and the multiplier method. It is a good idea to use both methods as a start, and based on that range, adjust your demand. The numbers you get may differ wildly, but this is not a problem – it boils down to negotiations at the end. If your case involves getting hit by a drunk driver running a red light and you have lots of medical bills as a result of that accident, start on your settlement range’s highest level. If you slipped on snow or ice on someone’s private property and liability is not clear, your settlement will be closer to the lower level. Each case is unique, but the main idea is to start at a reasonable number that can be justified in your demand letter. If you or a loved one has been injured due to another person’s negligence or carelessness, you should immediately approach a personal injury lawyer and the best in the business work for RMFW Law who can be reached @ 212-344-1000. The first meeting is free. Give us a call so we can hear what you have to say and if we feel you have a case we can begin working out a winning strategy and how we want to attack the other side. We have won millions of dollars for past clients, you too can be on this sterling list. Since RMFW Law does not take anything up front and we pay you a percentage of the final settlement, it is as if you do not pay us anything at all. We know which legal avenue to take and when to take it. RMFW Law has been around the block before. Call us today!

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!