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.

Lavern’s Law – What Is It and What Does It Mean for Cancer Victims?...

On January 31^st, 2018, New York passed Lavern’s Law – a law that will change the statute of limitations on some medical malpractice cases. Lavern’s Law is named for Lavern Wilkinson, who passed away at age 41 from a treatable form of lung cancer because of a misdiagnosis. Governor Andrew Cuomo, who signed the bill into law, said he was proud to sign legislation that rights a wrong in the law, and that provides new protections and peace of mind to New Yorkers.

What is Lavern’s Law?

Lavern’s Law changes New York’s medical malpractice statute of limitations in cancer cases. The statute of limitations is the deadline by which all claimants must file before the courts will refuse to hear a case. Prior to the passing of Lavern’s Law, claimants in New York had 30 months (or 2.5 years) from the date of the alleged malpractice that caused the injury. That means 2.5 years from the date of the defendant’s negligent action or omission, regardless of when the patient actually discovered the malpractice. Thanks to Lavern’s Law, patients with cancer now qualify for a new discovery rule within New York’s medical malpractice statute of limitations. Rather than having 2.5 years from the date of malpractice, cancer patients have 2.5 years from the date they discover their injuries or the act of malpractice. The law means New York will join dozens of other states that already had discovery rules in place for medical malpractice claims involving the delayed discoveries of injuries or illnesses.

The History of Lavern’s Law

This significant change in New York’s medical malpractice law came about because of one woman: single mother and church librarian, Lavern Wilkinson. Wilkinson died prematurely of a treatable form of lung cancer because her diagnosis came two years later than it reasonably should have. Grossly negligent physicians at the Kings County Hospital failed to diagnose her with lung cancer in 2013. It was not until Wilkinson began showing signs of late-stage lung cancer, in 2015, that she finally received a lung cancer diagnosis. At this point, her cancer had sadly progressed to the point of being terminal. Wilkinson filed a medical malpractice claim as soon as she discovered she had lung cancer, hoping to obtain compensation to ensure the financial future of her then-15-year-old daughter, who had autism and developmental delays and required around-the-clock care. The courts refused to hear Wilkinson’s case because it had been more than 30 months since the failure to diagnose.

The Future of Medical Malpractice Cases in New York

Lavern’s Law did not happen overnight. In fact, the law did not initially come up for vote despite more than 60% of senator support because of Republican state Senate leader, John Flanagan. The Assembly passed the law and Gov. Cuomo pledged he would sign it, but the bill became a dead letter when Mr. Flanagan refused to let it get to the floor, partially because of bill opposition from the Greater New York Hospital Association. John DeFrancisco, the Senate’s No. 2, filed a motion for the full chamber to consider the bill. An amended version of the original legislation finally passed into law in January 2018. The law now states that victims can commence actions for medical, dental, or podiatric malpractice within two years and six months of the accrual of any such action. An accrual occurs either when someone knows or reasonably should know of the failure to diagnose a malignant tumor or cancer, or the date of the last treatment for such a condition. Victims have no later than seven years from the date of the malpractice to file (the statute of repose). Cancer victims like Lavern Wilkinson will now have more time to file medical malpractice lawsuits in New York. They will have 30 months from the date of injury or discovery of the injury, whichever comes first. If you have a medical malpractice cancer claim, do not assume the deadline to file has passed. Speak to a New York City medical malpractice lawyer for specific information about the time limit under Lavern’s Law.

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!