What is medical malpractice?
Well, the legal definition of medical malpractice is a deviation from accepted medical practice in the community. That’s a mouthful. I think people get very, very confused about medical malpractice cases. And I think the reason why people get so confused is because a lot of people think that every bad result that happens in a medical setting is malpractice.
Well, let’s start with the very first thing is that often somebody who is a victim of medical malpractice most of the time has something wrong with them to begin with. And sometimes those things can be fixed perfectly, but sometimes they can’t. So for example, if somebody goes in and has a very bad back and they have a back surgery and they call me after the back surgery and say, “Listen, I had this back surgery, but I don’t feel like my back is any better and I want to sue.” Well, that is likely not a case because not every bad result is malpractice. You need to have a deviation from accepted medical practice. And a deviation from accepted medical practice means that the doctor or the healthcare provider has to have done something that is really out of the ordinary.
For example, if you operated on the wrong part of the body, well that clearly would be a deviation. If you, for example, were doing surgery, if you nick a nerve that’s right in the area where you’re doing the surgery and it’s all intertwined, well that may not be malpractice. But if you nick a nerve in an area where you should never have been doing surgery in the first place, that may be malpractice. Bottom line is that it’s almost impossible for a lay person to figure out which cases are malpractice and which cases are not. And that’s kind of why you need to have a lawyer really, really go through it, because especially in the surgical cases, it can be a very, very fine line as to what constitutes medical malpractice as opposed to just a bad result.
What types of medical malpractice claims are there?
Well, there are variety of different types of claims. I would say the most common type of claim is what we call the failure to diagnose and/or treat. Usually, they go hand in hand. So failure to diagnose is where somebody comes into the office, they have symptoms or complaints, and let’s say the doctor says, “You know what? I don’t really think there’s anything wrong with you. I think it’s all in your head.” And then it turns out that’s not true at all, that the person actually had something that the symptoms should have led the doctor to take further steps. So that would be your classic case of no diagnosis, failure to diagnose. That doesn’t happen that often. Usually, it’s a misdiagnosis. And once again, some of those cases are malpractice cases, some are not because symptoms can mimic a lot of different injuries.
And sometimes the doctor will believe that the symptoms are something and he has a good faith to believe that, even if it’s not the actual condition that the person is suffering from. So some of those cases are not malpractice. Some of those cases are malpractice. I’ll give you an example of a case that we had where it was malpractice. Okay?
We had a gentleman, he was going in and he was complaining about stomach pain and he was complaining his bowel movements were not normal. And so those all could be a lot of different conditions. Irritable bowel syndrome, GERD, which is what we call reflux. So those things could easily have been. But he had one other thing that the doctors didn’t really pay attention to. He had lost a substantial amount of weight. In fact, he’d lost 40 pounds.
And that’s great to lose 40 pounds if you want to lose 40 pounds, but it’s not great to lose 40 pounds when you don’t want to lose 40 pounds. An unexplained weight loss is often a sign, especially when coupled with the other types of complaints that he was having, of stomach cancer. And sure enough, they missed a stomach cancer on this guy and the guy passed away and we took the case and we had a very, very successful result where the family… But that’s an example of a misdiagnosis. They thought that he had reflux, they thought maybe it was heartburn and it ended up being something much more severe that they really should have been on top of. So that’s an example of misdiagnosis.
And of course as a result of that misdiagnosis, they’re treating his GERD, his reflux, but they’re not treating his cancer. So he’s missing that whole opportunity to get that treatment. So that’s the failure to treat aspect. So that’s one type of case.
Other types of cases, medication errors. We’ve had a number of cases where there have been medication errors. One can be where there’s a known allergy. In fact, we’re working on a case right now where there’s a known allergy. Patient was allergic to penicillin. It was documented in the chart. They gave the patient penicillin. Patient went into shock because he was allergic and they should have never given it to him. And he ended up in a coma for five days as a result, and now he’s slowly but surely making some improvement, but it’s a terrible situation. We’ve had other situations where we’ve had clients who have been ill where they’ve had high blood pressure and instead of giving them medication to lower their blood pressure, they gave them medication that increased their blood pressure. And ultimately in one of the cases caused one of the patients to perish because of that.
So you have to be very, very careful about prescriptions that you’re giving to patients and making sure that they’re not contraindicated for that particular patient. You want make sure that you haven’t given medicines that together can cause problems. So these are things that you really need to be able to look out for as a healthcare professional to make sure that those type of errors don’t happen.
We spoke a little bit about surgical error. Once again, not every surgical case, in fact, most surgical cases are not med mal cases even if there’s a bad result. There has to be really something significantly done wrong. And so we’ve had cases where there have been surgical errors made. We had one patient who had a heart condition. He was a large patient, they allowed him to be on his hand for the entire procedure. He developed what they call compartment syndrome in the hand and ended up with like an 80% loss of use of that hand. So when you go in for a heart aberration and you walk out with an 80% loss of use in your hand because the body part’s so far away, typically those types of cases you want to look at, they are likely malpractice cases. So that’s another area.
Anesthesia errors can be devastating. And the anesthesiologist, he’s responsible for the positioning the patient, but he’s also responsible for making sure the air when they intubate a patient, making sure that the airflow is going correctly, making sure that the anesthesia dose is correct. And we’ve had cases where the anesthesiologist was not on top of the patient’s airflow, or patient lost their airflow and developed brain damage. And ultimately because of that, once again, we obviously got a very good result for the family, but these things just should not happen. So that’s an anesthesia error.
And another area is… I’ll give you two more areas. Emergency room malpractice. Emergency rooms, obviously they’re very, very busy places and sometimes they get things wrong. We had one case where a guy had a significant fall. They found a number of fractures, his foot or his hand, they thought… And this can often confuse doctors. When they find one injury, they tend to focus on treating that injury, not taking into account that there could be other problems with that person. And this guy fell from a substantial height, they missed a major back fracture. And as a result of that, he ended up with what they call cauda equina syndrome, but essentially like a paralysis in his back because they did not address that broken bone in his back early enough. It started getting involved with the nerve roots down there, and he ended up with a permanent lifetime injury. Once again, we got a very good result, but that was an outrageous case of malpractice in my opinion.
So those are some of them. And then the last one I’m going to talk about is birth injuries. There really are a number of different types of birth injuries. The baby could be deprived of oxygen during delivery, resulting in brain damage, and those types of cases, you have to really look at the records and see what happened there. It’s often the case that C-section should have been done as a result of whatever difficulties the baby was having during birth as a result instead of doing a vaginal delivery. So if they didn’t do the C-section, they deliver vaginally, the baby becomes oxygen deprived. Those are very, very, very serious cases.
In addition, sometimes the doctors will injure what they call the brachial plexus of the baby and resulting in what they call an Erb’s palsy. And that is where they pull the baby too hard trying to get the baby out of the birth canal, and they put too much strain on the shoulders and arms. And by pulling on the shoulders and arms, you end up with a nerve damage in the brachial plexus. And some of them, if they’re not too bad, can resolve, but some of them, if they’re bad enough, they don’t ever resolve and the baby’s left with permanent losses in the use of their arm. So those are common types of birth injury malpractice cases.
How long do you have to sue for medical malpractice in New York?
Well, the general rule is you have two and a half years from the date of the malpractice to bring a lawsuit. But of course in the world of law, there are exceptions almost always to every rule. And the statute of limitations for medical malpractice is no exception to that. So I’ll give you some of the exceptions. First of all, they’ve decided that they don’t want to have patients stop treating with their doctor if they think that they were a victim of malpractice because then they might not get treatment that they actually need. So there’s this doctrine called the continuous treatment doctrine. And as long as you’re treating with the doctor for the same injury that the malpractice was committed for, you have up until the time that you stop treating with that doctor and then you have two and a half years from that date. So that’s called the continuous treatment doctrine. That’s one area.
Another area where there’s an exception is for children we call infants. Anyone up to the age of 18. In these situations, a two-and-a-half-year statute of limitations doesn’t begin to run until your 18th birthday. So you have two and a half years from your 18th birthday. But of course there’s an exception to that exception, which is that in no event will the statute ever be more than 10 years. So you have a two-year-old, they don’t have two and a half years from their 18th birthday, they have 10 years from the date of the malpractice to bring the lawsuit, which is still obviously substantially longer than for a regular person.
Now where the statutes start to get shorter rather than longer, those situations involve municipality. So when you sue, for example, you went to a state hospital, Downstate is a state hospital. So if you go to a state hospital and they commit malpractice and you’re suing that hospital, you have to within 90 days bring a claim, which is essentially a lawsuit in what they call the court of claims. Or you can also file a notice of intention to make claim, which is basically telling everyone, “Hi, I’m going to be making a claim and here is the basis of why I’m going to be making that claim.” If you submit that within 90 days, you then have two years from the date of the malpractice to sue. So that’s another area where they actually shorten the statute of limitations.
Same thing is true with city hospitals. Let’s use Kings County Hospital as example. That’s a city hospital. Once again, you have 90 days to put in a notice of claim. Now, there are exceptions, you can ask the court to extend that time, but you have 90 days to put in that notice of claim, and you only have one year and 90 days from the date of the malpractice to sue the city for malpractice. And the city in this case it’s health and hospital corporations, it’s New York City Health and Hospital Corporation. That’s who you would sue, but you only have a year and 90 days. So the windows are much shorter when you’re dealing with the government, and you need to be aware of that.
Another thing that people sometimes get a little bit confused about is unfortunately, sometimes malpractice results in wrongful death. And the statute for wrongful death is shorter than the statute for medical malpractice. So you may have a claim where there’s both, where up until the time the person died, there was pain and suffering. So that’s your medical malpractice claim. And then you’re also saying, well, the death was caused by this as well, and that’s your wrongful death claim. So to be safe in those cases, you definitely want to bring both of those claims within the two-year period, even though you have two and a half years for med mal. Just to be safe, to me, it just makes more sense to bundle the two together in one complaint rather than serve two different complaints. I don’t see how that would help your client in any way. So that’s basically the situation with the statute of limitations.
How do you start a medical malpractice lawsuit?
Well, unlike an automobile accident case or a trip and fall case, the laws force you to speak with the doctor and go over the case with the doctor and get a doctor to tell you that they believe that this is a malpractice case before you can even start a lawsuit. So they call it a certificate of merit, and that needs to be attached to your summons and complaint. That’s how we start lawsuits here in New York. We file a summons and complaint, but unlike other cases, this summons complaint also needs to have a certificate of merit that says, “I’ve spoken with a doctor and went over the case with the doctor, and the doctor has told me that he believes it’s a malpractice case.” Doesn’t mean you automatically win because defendants are going to have their own doctors that are going to say it’s not a malpractice case. But you can’t even start the lawsuit without that. So that’s the first thing that you need to do is meet with the doctor and get a doctor to say that we believe that this is a case.
Once you start the summons the complaint, it’s a very, very lengthy process. They get to answer that complaint. They then get to tell you what all their defenses are to the case, all right? And then there are going to be depositions where testimony of basically everybody involved in the treatment. So the plaintiff who’s the person who got injured, they have to testify, but also you’re going to have doctors, you’re going to have nurses, you may have orderlies, you may have staff administrators. There are just so many different people that can be involved in a medical malpractice case. And unlike an auto case where maybe you only have one or a couple depositions, medical malpractice, you’re probably looking at a lot of depositions in general. You really want to figure everything out. And the only way to do that is to speak to everyone. And I’ve actually found that some of the best testimony that I’ve ever gotten in med mal cases are from nurses, orderlies, and other people that sometimes are less likely to cover things up, quite frankly, and tell the truth. So I think they’re important witnesses.
The other thing is you need experts for the most part. Now there is something called res ipsa where the thing speaks for itself. So rare, especially in a medical malpractice case. I put them into my complaint, but it’s not really what I’m hanging my hat on. So I need to have experts, and sometimes it’s multiple experts because multiple things have happened. And those experts need to be involved in not only giving me an opinion based on the records, but they need to look at all the deposition transcripts and tell me what their thoughts are on all the deposition transcripts. And also the defendants are going to hire experts. And so from my expert, I need to know what his thoughts are about the defendant’s expert’s opinions. So these are all the things that go into a med mal case. And so it’s often quite complicated.
Are medical malpractice cases easy to resolve?
And the short answer to that is no, they are not. Med mals are just different than other types of cases. They’re just not your typical run-of-the-mill automobile accident case or trip and fall case. Let’s start with the first premise, people, and rightfully so, like doctors. Doctors are for the most part trying to get people to be better. They’re saving people’s lives. During the COVID crisis, they were absolute heroes. My father’s a doctor, so I have a lot of respect for doctors and so does most of the community. So what’s interesting is that for an automobile case or a trip and fall case, lawyers work on a contingency basis, which means if we don’t win, we don’t get paid. So lawyers tend to try to pick cases that they definitely think they’re going to win. And the winning ratio for a personal injury case or a slip and fall case, it’s probably in the 90%. It’s a very, very high percentage of success because the lawyers are handpicking cases they think that they are definitely going to win.
What’s interesting is that even though the lawyers are handpicking cases in medical malpractice, the winning ratio is about 50%. You need a lot of things to go in your favor to have a successful medical malpractice case. You need a significant deviation. If it’s an emergency situation where the doctor is saving the life of a person and they save the person’s life, but the person ends up with some problems as a result of that doctor trying to save that person’s life. Listen, a jury is not going to be sympathetic to that. They’re going to be more sympathetic to the doctor in that situation. So mistakes are definitely made by doctors, and when doctors make mistakes, they should pay for those mistakes. Lawyers make mistakes sometimes too, and when lawyers make mistakes, they should pay for their mistakes. And accountants where they make mistakes, they should pay for their mistakes. So it’s only fair, but you are up against the fact that most people have a very, very strong positive feeling about the medical community in general. So you need a very, very strong case.
Also, a lot of people come to me and they’re like, “Well, the doctor did something wrong, but I didn’t get hurt.” Well, then you don’t have a case. You need to have an injury to have a case. And in fact, for med mal, you need to have a pretty significant injury because the cost of litigating of these types of cases is very high and you don’t want to spend more on the case litigating than the case is actually worth. So in general, we take medical malpractice cases where there are significant injuries.
The other thing that we take into account is these cases don’t settle just like over the telephone or with a letter, and that can sometimes happen with an automobile case or a trip and fall case. It does not happen in medical malpractice cases for a number of reasons. Number one, they have very, very good defendant’s lawyers defending these cases. They’re highly skilled and they are used to taking these cases the distance and seeing if the plaintiff can hold up for that entire time. Maybe the case will collapse, maybe something will come out that will help them. So that’s one factor why they don’t resolve.
Another factor why they don’t resolve is that the doctors have control over whether the case is settled or not. Often, there’s a consent portion in their policy where they need to consent to settling the claim, and often they won’t consent to settling the claim because if that does occur, it actually gets reported to the state. And when you look that person up, you will see that there’s a reported settlement. So they often don’t want to settle the case unless they absolutely have to. So that’s another factor that keeps these cases from resolving early.
I do think that as we head maybe further down the road, that there’ll be more opportunities to arbitrate because the courts are now becoming much more involved in arbitration and mediation. Maybe that will speed the process, but for the most part, medical malpractice cases tend to move very slowly and take a long time to resolve.
Can you do them on your own? This is the one area where… I think there are a lot of areas where you definitely want to have a lawyer, but this one is essential. If you don’t have a lawyer and you’re doing a pro se men mal case, in my opinion, you’re wasting your time because it’s so complicated to go through all the hoops that you need to in order to get to the end that if you don’t have experience doing this over and over and over again, you’re not going to be successful. So the answer is no. They’re not easy to resolve, and I do believe that for almost any med mal case, you need a lawyer.
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