- Medical Malpractice - Frequently Asked Questions
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- What Is Medical Malpractice?
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Medical malpractice is a catch-all term for negligence, that is, lack of care, in the course of rendering health services.
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- Who May Be Liable For Medical Malpractice?
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Although most malpractice claims arise from services rendered by physicians, any health service provider may be held liable for injuries to patients, and in rare cases, injuries to non-patients. Hospitals are generally not responsible if a private physician should harm a patient being treated in the hospital. Hospitals may be may be held liable to injured patients if their employed doctors or other staff are negligent, if the hospital permits unqualified doctors to practice in the hospital, or if the hospital provides doctors for the patients, even if the doctors are not employees.
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- What Is The Legal Definition Of Medical Malpractice?
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| Medical malpractice is defined as a departure from accepted standards of care, causing an injury to a person to whom the health care provider owes a duty of care. The health service provider obviously owes a duty of care to the patient, but also owes a duty to a person in contact with the patient who is at risk to be harmed, for example an unborn child, or a person who may contract an illness if the health care provider does not take proper precautions.
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- What Is Informed Consent?
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| Every health service provider who recommends a course of treatment to a patient has a legal obligation to explain the reasons for the recommendation, including the expected benefits, the reasonably foreseeable risks, and the risks and benefits of generally recognized alternative courses of treatment. If the patient is not so informed and should sustain an injury from the procedure, the health service provider can be liable. Most, but not all, physicians and hospitals, have patients sign consent forms for procedures, to prove that the patient has been properly informed. But, the form is not the consent, it is only some proof that the patient was in fact informed. It is so difficult to prove that a patient was not properly informed, that lawsuits alleging lack of informed consent are rarely filed, and very rarely are successful.
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- What are the Fees for Medical Malpractice Cases?
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Fees in medical malpractice cases are limited by law to a sliding scale starting at 30% of the first $250,000 recovered. Fees in death cases and cases involving injuries to children are subject to review of the court. In rare cases, the court may award up to 1/3 of the recovery as a fee in a medical malpractice case. We usually advance the expenses in medical malpractice cases. These advances are loans, and interest may be charged. However, if the case is lost, the client need not pay back the expenses. For a copy of our standard retainer contract, click here. |
- What is the Statute of Limitations?
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The usual statute of limitations for medical malpractice actions in New York is two and one half (2 ½ ) years from the date of the malpractice. For wrongful death actions, the statute is two years from the date of death. For actions against public hospitals, such as Westchester Medical Center, there is a shorter time period and the additional requirement of filing a Notice of Claim within ninety (90) days after discharge from the hospital. Claims for children have longer statutes of limitations, up to ten years. This is only a partial list of the different time limitations that may apply. Because of the complexity of determining limitations periods for medical malpractice claims, it is wise not to wait to contact a lawyer after someone has been seriously injured or killed. |
- How long do Medical Malpractice cases take?
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The first step in any medical malpractice claim is a telephone interview with a lawyer or paralegal in our office. If, after a telephone interview, we believe there is a reasonable basis to investigate the claim, we will arrange for an appointment in our office, or we can make home or hospital visits to those who are unable to travel. An appointment usually involves an interview lasting about an hour, in which we obtain more detailed information and review records if you have any. At that point we will decide whether to undertake an investigation. Obtaining medical records may take months, due to delays in medical records departments; and reviewing the records and finding the right experts can also be time consuming. The process from initial contact to filing a lawsuit can take over six months. On rare occasions, we are able to adjust claims with insurance companies or government agencies without commencing a lawsuit. Most cases that we accept have to be filed in court. After filing the case in court, the litigation process rarely takes less than two years, depending upon where it is filed and how complex the case is. |
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Every case is unique, and it is impossible to realistically estimate the value of any case without extensive investigation. In general, we do not accept medical malpractice cases with estimated value of less than six figures because the expenses and time involved to prosecute such cases are so great. It is our policy never to give more than a very general estimate of the value of any case before money is offered in settlement. Settlement offers usually come late in the litigation process, when trial is approaching. We promptly communicate all settlement offers to our clients and spend as much time as necessary to help them make informed choices whether to accept such offers. |
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McCarthy Fingar's Medical Malpractice and Personal Injury lawyers are dedicated to our clients' success. If you have any questions on a medical malpractice issue, please
contact Joseph
J. Brophy by email (jbrophy@mccarthyfingar.com)
or by phone (914-385-1021). |
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Copyright McCarthy Fingar LLP 2001-2010 All Rights Reserved |
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