Medical Negligence

Medical negligence is one of the most complex and misunderstood areas of the law. When a professional commits a negligent act or fails to do something that should have been done, and the person seeking advice or care is injured as a result, it is called malpractice. Malpractice sounds ominous, but it is really just professional negligence. We often hear through the media that there are too many lawsuits and that so-called "frivolous" lawsuits drive the cost of medical care. Studies have shown that this is not the case, and in New York alone perhaps as many as a 100,000 cases of medical negligence go unreported each year.

If you think you have suffered an injury as a result of medical malpractice, you need a thorough review by an experienced AV-rated attorney to help you understand whether you truly have a case and whether it can be timely brought. Our White Plains medical malpractice attorneys are aggressive advocates who will fight for your right to monetary damages. Contact a Westchester County medical malpractice attorney today.

There are many different types of medical negligence. For example, a surgeon may operate in the wrong area or perform the surgery so poorly that the patient is harmed instead of being helped. Or a doctor may fail to diagnose a condition that should have been diagnosed, or take too long to make a proper diagnosis, or actually misdiagnose a patient's condition.

Medical malpractice cases are not only complex, they are also expensive cases to bring, and the initial step of acquiring the necessary hospital and/or office records itself can be an ordeal. Further, when it comes to actual litigation, the difference between simply a "bad result" and proving an actionable case is a compelling and arduous task. To establish medical malpractice, the law requires that the plaintiff actually prove that the injury or condition complained of came about because the caregiver departed from the standard of "good and accepted medical practice." Proving that a doctor or a hospital departed from the "standard of care" not only requires careful legal analysis (and often several reviews by different medical professionals), it ultimately requires expert testimony from a qualified and respected medical professional.

Medical Negligence FAQ

How long do I have to bring a medical malpractice action?

The so-called "statute of limitations" limits the time period within which you may sue a person, partnership, or corporation. (There are, of course, different statutes of limitations for various types of lawsuits.) For medical practice cases, the general rule is that the action must be filed within two and one-half years from the date the malpractice occurred.

What if I didn't find out about the malpractice until after the statute of limitations has run?

The short answer is: it depends. There are some exceptions to the rather harsh, general rule of two and a half years from the date of malpractice, including something called "the continuous treatment doctrine." Under the continuous treatment doctrine, the statute of limitations does not begin to run until treatment with respect to the particular ailment or condition is concluded. Although this rule may sometimes help a client begin a law suit more than two and one-half years after the malpractice occurs, there are many nuances to the rule.

For example, if you are continuously visiting your doctor for the same condition over a period of years, say three or more years, and during that time period the doctor comments upon a different condition, misdiagnosing it, the continuous treatment would not apply to that different, misdiagnosed condition because you were not seeing the doctor continuously for that particular condition! (The two and one-half year statute would apply and would run from the date the doctor advised you of this other, misdiagnosed condition.) However, the continuous treatment doctrine would apply to the condition for which you were continuously seeing the doctor over that three or four year period and extend the statute of limitations—but only for that condition.

The statute of limitations can also be extended when so-called "foreign bodies" are left in your body after surgery and cause you harm. The rule in New York is that a medical malpractice lawsuit may be filed within one year of the date of actual discovery of the foreign object, or within one year of the date of discovery of facts that would reasonably lead to the discovery of the foreign object, whichever is earlier.

Who can be sued?

In addition to doctors, nurses, and other medical professionals who can be sued directly for their negligent acts and omissions, a medical partnership, corporation, as well as public and private hospitals can be sued and be held liable for the negligence of their employees. Thus, a hospital or other entity can be held liable for the negligence of doctors, nurses, paramedics, and medical technicians under the legal theory of "vicarious liability," simply because the hospital, or other entity, employed the person who committed the negligent act.

It is important to contact an experienced personal injury attorney with considerable experience in the area of medical malpractice as soon as possible if you think you or a loved one has been a victim of medical negligence whether by a doctor, and/or a hospital or its employees.

Sample Medical Negligence Verdicts and Settlements

Barbara Cestone v. New York City Health & Hospitals Corporation, (Bronx Sup. Ct.). Barbara Cestone was a forty-year old woman who underwent breast reduction surgery. Post-operatively she developed infection & necrosis of her breasts. Our theory of liability was that the infection was not promptly and properly diagnosed and treated; appropriate drains were not placed and/or properly monitored; dressings were not appropriately changed, and necessary antibiotics were not prescribed and administered, resulting in spread of infection & necrosis of breast tissue. As a result, she required extensive debridement of tissue and multiple surgeries, including skin grafting procedures. The case was complicated by the fact that she was a smoker with poor vasculature. (We also argued that based upon her best medical history, she was not a proper candidate for the initial surgery.) The case settled before trial for $400,000.
Kurtis Kotes, as Administrator of the Estate of John M. Kotes, deceased, plaintiff v. Alandra M. Tobin, M.D, Mid-Hudson Medical Group, P.C., and Vassar Brothers Medical Center, defendants, Index No. 1319/2011 was a medical malpractice/wrongful death case. John Kotes, the decedent, was 77 years old at the time of the alleged malpractice which led to his death four months later. The malpractice occurred when Mr. Kotes was admitted to the defendant Vassar Brothers Medical Center for performance of a cardiac catheterization in anticipation of forthcoming elective surgery to repair an abdominal aortic aneurysm. During the course of the cardiac catheterization, Mr. Kotes sustained an air embolism which was a proximate cause of his sustaining a large right middle cerebral artery (MCA) stroke (infarct). Our theory of liability was that the defendants were negligent in their performance of the catheterization procedure itself which in turn caused the air embolism and infarct to occur. The case settled before trial for $300,000.