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What you should know about medical malpractice claims in New York

There are certain rules and guidelines by which someone must abide when filing a medical malpractice lawsuit in New York.

In New York, there were 2,928 reports of medical malpractice in 2014, according to the National Practitioner Data Bank. Those cases could have resulted in payments and adverse actions against the physician or facility.

Suffering from an act of medical negligence is an experience no one should have to endure. The physical, financial and emotional consequences can be difficult to overcome. However, filing a claim against the responsible parties can help a victim secure the compensation necessary to pay bills and recoup other losses. Here is what people should know when pursuing such a claim in New York:

What constitutes medical malpractice?

Physicians and medical facilities that treat patients owe those patients a duty to use reasonable care treating a patient in the manner that a reasonably prudent doctor would under the circumstances. If a treating physician does not treat his or her patient in a reasonably prudent manner, and the patient is injured as a result, that is considered to be medical malpractice. The standard of care, is the accepted way in which a doctor should diagnose, treat and otherwise tend to a patient.

Malpractice can occur in a number of ways, such as a physician committing an error when prescribing or administering medication. There are also surgical errors, such as leaving a foreign object in someone's body or operating on the wrong body part. Failing to diagnose a condition or misdiagnosing a condition may also be considered medical malpractice.

How do I prove medical malpractice?

There are several items that someone alleging medical negligence will have to demonstrate, including the following:

  • The patient was under the defendant's care.
  • The defendant departed from the standard of care.
  • The breach directly resulted in harm to the patient.

In order to establish the standard of care, prove that the defendant deviated from that standard, and that the negligence caused an injury the Plaintiff must bring in expert witnesses, who is often a physician who has the same or similar qualifications and practice area as the defendant.

Is there a deadline by which I need to file a claim?

Yes. New York law establishes a medical malpractice statute of limitations. As the Association of the Bar of the City of New York points out, someone who has suffered a medical error has 2.5 years from the date of the incident or 2.5 years from the last time the patient received treatment from the defendant. A wrongful death claim has a two year statute of limitations, when suing a municipal defendant (ie. New York City Health and Hospitals Corporation) a notice of Claim must be filed within 90 days of the event and a lawsuit started within 1 year and 90 days, or suing the State or State agency a Notice of Intention to file a claim must be filed and the lawsuit started within 2 years of the occurrence.

There are exceptions to calculating the Statute of Limitations such as infancy, incompetence, continuing treatment, cases in which a foreign object was left behind in someone's body after an operation. The correct determination of the Statute of Limitations can be complicated and is very important as if the date is passed a Plaintiff will be stopped from presenting his/her claim. It is important to have an experienced attorney review your matter and figure out the Statute of Limitations as soon as possible to protect your rights.

What damages are available?

A medical malpractice lawsuit can result in several types of damages for the plaintiff. Economic damages, or compensatory damages, restore the financial losses someone suffers, such as medical bills or time missed from work. Noneconomic damages account for intangible costs, such as pain and suffering, and loss of spousal services.

Anyone who has questions regarding this topic should consult with a medical malpractice attorney in New York.

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