FAQs About Medical Malpractice Cases

What is medical malpractice?

When your doctor or other healthcare provider fails to provide to you the proper, acceptable standard of care or treatment, he or she has committed medical malpractice. The treatment can fall below the acceptable standard of care because of their mistakes, ignorance, negligence, lack of skill, misdiagnosis or other errors. The law holds doctors, nurses, and other medical professionals responsible for providing care at acceptable standards. When they deviate from those standards, they may be held accountable for medical malpractice. These claims are often quite complex, and the services of a hired medical professional are necessary in order to prevail. Michaels & Smolak uses the most qualified medical professionals, including medical doctors, to support their clients’ medical malpractice claims.

What is the “standard of care” mean in a malpractice case?

The “standard of care” is the degree of care and skill that the qualified doctor would provide to a patient who sought medical care for similar symptoms and circumstances. If the doctor’s treatment of you fell below the “standard of care,” you may have a malpractice case.

What was that “consent form” I signed before my doctor performed surgery?

In the consent form, the patient usually consents to the specific surgery as well as to any other procedures that might become necessary. Before you sign it, your doctor should give you a full description of the surgery and the risks involved, and the ramifications of not getting such treatment, as well as the common risks of the surgery. If you have a bad result from the surgery, and can prove that your physician misrepresented the facts or failed to adequately inform you of the risk of that result before surgery, and you would not have consented to the surgery if you had known the risk, you may have a claim for malpractice (“lack of informed consent”).

What is a “lack of informed consent” medical malpractice case?

There are essentially two kinds of medical malpractice cases: The most common kind is where your doctor simply made an error or mistake causing you harm (e.g., failure to properly diagnose you, botched surgery, wrong prescription). The second, and less frequent kind, is where the doctor did not necessarily make any mistakes, but instead simply failed to tell you (“inform “ you) of the common risks or undesirable outcomes of a procedure or surgery. This is called “lack of informed consent”. For example, if you elect to have back surgery, and a known risk of the surgery is partial paralysis, and you end up with partial paralysis, but your doctor never told you about that risk, then you may have a “lack of informed consent” medical malpractice case. In order to win your lack of informed consent case, you will have to testify that, had you been informed of the risk, you would not have elected to have the surgery.

If I have a bad result from my surgery, do I have a malpractice case?

In general, there are no guarantees of medical results. Lots of surgeries have bad results, even when correctly performed. To show malpractice, you have to show more than just a bad result. You have to show that the bad result resulted from the doctor's deviation from the appropriate standard of care for your condition. In other words, you would have to show that the doctor was negligent, and that his negligence caused your bad result.

My doctor admitted he made a mistake. Do I have a malpractice case?

It depends. If your doctor's mistake was the result of negligence or failure to meet the expected standard of care, and his mistake caused you harm, then you have a malpractice cause. Lots of mistakes cause no harm, though, so a mistake alone is not enough.

What do “failure to diagnose” and “misdiagnosis” mean?

"Failure to diagnose" means that your doctor completely overlooked your illness or condition that he should have been able to diagnose if he had followed the proper standard of care. He did not diagnose anything, when in fact he should have. For example, maybe he overlooked a cancerous growth clearly visible on an X-ray. “Misdiagnosis” is similar, except that the doctor did reach a diagnosis, but the wrong one. For example, he may have told you that you were suffering from a rectal hernia when in fact it was rectal cancer. It can mean that a doctor or physician did not diagnose a disease such as cancer. It can also mean that a delayed diagnosis caused delay in treatment, thereby increasing the patient's risk. Failure to diagnose and misdiagnosis are common grounds for malpractice claims.

What Are the Most Common Types of Malpractice?

Common medical errors include: misdiagnosis, pharmaceutical (medication, prescription) errors, surgical mistakes, anesthesia errors, emergency room errors, radiology errors (failure to read or properly interpret X-rays, MRIs, cat scans, etc.) and failure to properly diagnose or treat cancer.

What is the Statute of Limitations for Medical Malpractice Cases?

In New York, medical malpractice lawsuits must be brought within two and a half years from the time of the malpractice, or within two and a half years from the date of the last continuous treatment for the condition that gave rise to the injury. However, there are exceptions. For example, foreign object cases may be brought within one year from the date upon which the foreign object was discovered. Sometimes the statute of limitations is “tolled”, i.e., does not start running for a time. For example, a child’s statute of limitations does not start to run until he turns 18. So his medical malpractice statute of limitations will run out when he turns 20-and-a-half years old. Calculating a medical malpractice statute of limitations requires a complete knowledge of the facts and lawyerly skill. Contact us to discuss your statute of limitations.

Why do I Need a Lawyer with Experience in Medical Malpractice?

Medical malpractice claims don’t settle easily out of court. Doctors are usually outraged at being sued. Some believe they can do no wrong. In any event, they don’t want to admit any wrongdoing, and to them, settling is just that, an admission that they did wrong. Therefore, more than with any other type of case, your lawyer must be prepared to try your case. Yet statistically, medical malpractice claims are among the most difficult claims to win at trial. Most of them are lost. Your best chance at settling, or if you can’t settle, winning at trial, is with an experienced medical malpractice trial attorney whose reputation might induce a favorable settlement or, that failing, whose trial skills and medical knowledge will tip the scales in your favor at trial. The medical malpractice team at Michaels & Smolak is skilled and experienced in such claims, so contact us for a free consultation now.

What do I Have to Prove to Beat my Doctor at Trial?

In order to succeed with a medical malpractice claim you must prove that your doctor or other health care provider’s treatment of you was “negligent”, which in medical malpractice cases is defined as treatment that falls below the “standard of care” of practice for a reasonable practitioner in a particular area of medicine. Just proving you had a bad result from a medical treatment or procedure is not sufficient; some bad results can occur even when your doctor was not negligent. Sometimes there are “known risks” that are unavoidable with certain surgeries, treatments or medication. Further, even proving a departure from the standard of care is not enough! You must then prove that the mistake or error “proximately caused” the injury or damage to you. For example, your doctor may have departed from a reasonable standard of care in not diagnosing properly your fractured wrist. Maybe he completely overlooked the fracture. But what if he had properly diagnosed it? Would your wrist be any better now? If a proper diagnosis would not have lead to a better result, then there is no “causation” between your doctor’s negligence and your injury. In other words, “no harm, no foul”. A good medical malpractice lawyer knows how to analyze carefully the “elements” (what you have to prove) of a medical malpractice case. He or she also knows how to present these elements to a jury. The medical malpractice team at Michaels & Smolak has the skill, experience and expertise to maximize your chances of prevailing. So contact us for a free consultation.

Are Medical Malpractice cases easy to win?

No. They are often the hardest cases. Why? There are several reasons, but one of them is simply that juries tend to side with doctors. They like doctors. Statistically, a patient wins against a doctor only 1 out of 3 times in court. That’s why you need a very good malpractice lawyer on your side --- it increases your odds of beating your doctor in court. You are on the website of some of the best –contact us about your medical malpractice case for a free consultation.

Will a lawyer take my medical malpractice case even though my injury is fairly minor?

No. The reason: Medical malpractice cases are very expensive to bring. This is mainly because the law requires you to have an expert medical doctor review the treatment you received and render an opinion as to whether there was malpractice. This medical review is very expensive, and it is even more expensive to have the expert testify at trial. A medical malpractice lawsuit general costs at least $10,000, and often much more, to bring. This does not include your lawyer’s contingency fee, but only the experts’ fees. Therefore reputable lawyers won’t take your case if you have suffered only minor injuries --- it does not make economic sense to do so because the jury award will likely be smaller than the expenses.

If I sue my doctor and win, will he lose his license or be reprimanded?

No. Your doctor will suffer some loss of pride, of course, but otherwise he or she will not pay any real consequences. His or her insurance will pay for the legal defense of the case, and will also pay the amount you recover from him or her in court, unless the amount you are awarded goes beyond the insurance policy limits.

Will my medical malpractice case settle out of court?

Don’t count on it. Medical malpractice cases are much less likely to settle than other types of cases? Why? First, most malpractice insurance policies give the doctor (the insured) “veto” power over any settlement --- in other words, the doctor has to ok the settlement. But many doctors don’t want to settle, because they feel it will be perceived as an admission of guilt. Also, medical malpractice insurers want to discourage malpractice lawsuits, and therefore often prefer to make you, and your attorney, go all the way through trial --- they make you work for your money! Finally, since doctors and their insurers both know that they win on average 2 out of every 3 times, they are likely to want to take their chances at trial rather than settle. For all these reasons, you had better be prepared to go to trial on your medical malpractice case --- and you had better have a lawyer who is prepared to do so, too.

How long will my medical malpractice case take?

It depends on the complexity of the case and on whether you are still receiving active treatment to get better. If it is a complex case, and if you are still treating, the case may take years. In any event, from start to finish a medical malpractice case usually takes at least a year and a half to get to trial.

How much is my medical malpractice case worth?

It depends on several factors. First, if the medical malpractice caused you to suffer a permanent, significant injury or condition, with a lot of pain or loss of enjoyment of life, or a very bad prognosis, then your case is worth much more than if you suffered only a small, minor injury or loss. Second, if your case is a “slam dunk”, i.e., it is very clear that your doctor committed an egregious error, then your case is worth more than if it is a close call as to whether he or she malpracticed you. Other factors weigh in, too. Contact us to find out more.

Is a dental malpractice case the same as a medical malpractice case?

Essentially, yes. The same rules apply in each.

What types of birth injuries are most likely caused by malpractice?

The birthing process is dangerous, and unfortunately, medical mistakes here are all too common. The most common birth injuries include: Erb’s palsy, cerebral palsy, brain injuries, shoulder dystocia, seizures, meconium aspiration, fetal distress, excessive bleeding, brachial plexus injuries and stillbirths.

What is cerebral palsy?

Cerebral palsy is a disorder that affects the child's ability to control his or her own movement caused by injury to the cerebrum, the largest portion of the brain.

What is Erb’s Palsy and Brachial Plexus Palsy?

Excess stress to the newborn’s neck during delivery may injure the nerves causing paralysis of the arm. An “avulsion rupture” means the nerves are torn away at the area of the spine. “Neuroma” means the nerves are torn, but during the healing process, scar tissue forms. This can disable the arm. All these are usually initially caused by a shoulder dystocia (shoulder of infant gets stuck in the birthing process). This in turn can cause "brachial plexus" injury as well as "Erb’s palsy" and even death. Shoulder Dystocia is also dangerous for the mother; it can cause excessive bleeding, vaginal or cervical lacerations, or rupture of the uterine. There are safe techniques for dislodging the infant’s shoulder, including Woods-screw, Rubin, Gaskin (“all-fours”), and McRoberts maneuvers.

What are common birthing problems often associated with medical malpractice?

Umbilical cord entrapment or compression, electively long labor, breech, fetal distress, problems with vacuum extractor or forceps, delays in treating infections, shoulder dystocia, bleeding or lack of oxygen experienced by mother or infant, delay in decision to do cesarean section, bacterial meningitis and viral encephalitis, and inadequate medical care during pregnancy.

When should I suspect that my child's Cerebral Palsy was the result of medical malpractice rather than just bad luck?

You should suspect medical malpractice where some of the following are present: Infant had low APGAR scores; Low umbilical cord blood gas; Infant had blue skin color upon birth; An emergency Cesarean Section (C-Section) was performed; Baby needed to be resuscitated after birth,; Presence of meconium (fecal matter) on the baby's body or in the amniotic fluid; Baby was placed in Intensive Care Unit.; Floppy baby (poor muscle tone and/or poor sucking response); Baby was not delivered within 24 hours of water breaking.

Contact us today for a free consultation if you suspect medical malpractice.

How do I know if my doctor's negligence caused my child's birth injury?

An experienced malpractice lawyer knows how to carefully review the medical records, including the neonatal records, the fetal heart monitor strip, labor and delivery records, and the newborn records. If medical malpractice occurred, evidence of it is usually present in some or all of those. If your lawyer suspects, from his review of these, that malpractice may have caused your baby’s birth injuries, he will have a highly qualified specialist physician review them to render an opinion as to whether malpractice occurred and whether such malpractice caused your child’s injuries.

What are other common birth injuries caused by malpractice?

Other types of birth injuries include: Spinal cord trauma, cranial nerve trauma, depressed skull fractures, facial paralysis, temporary paralysis of other parts of body, strep infections (group B), intracranial hemorrhage, cephalohematoma, discoloration or swelling of the scalp, forceps marks.

Why do I need an experienced malpractice attorney for a birth injury claim?

Medical malpractice claims, and particularly birth injury claims, are often the most complex and demanding of injury claims. Your lawyer needs to be an “expert” not only in the law, but also in the medicine, medical terminology, and standard medical practices for delivering babies. These kids of claims often go to trial, so your lawyer needs to be experienced and skilled in the Courtroom, too.

What do I do if I think I have a medical malpractice claim?

Contact us today for a free consultation! We will let you know whether you have a case.

What if I have other questions about medical malpractice claims?

Contact Michaels & Smolak today. We will answer your questions and discuss your case.