Your Long Island Medical Malpractice Case: The Basics

You don't remember the accident, but doctor at a local Long Island hospital said that's normal after a concussion. You are grateful for the treatment, but two weeks after discharge your headache is only getting worse. You find yourself back in a diagnostic room with a concerned looking doctor examining the X-rays and telling you, "we missed something." As if a major crash wasn't bad enough, now you have hematomas pressing against your brain and the doctor wants to drill holes into your skull. Now you want fair compensation, but you also have a ton of questions. The New York legal system is full of pitfalls, which is why FindLaw has created this informational guide to Long Island medical malpractice cases, in general.

The Defendant(s)

A medical malpractice victim often has a choice of suing either (or both) the medical professional who committed malpractice or the hospital where the malpractice occurred.

You can sue the hospital under two theories. First, the doctrine of respondeat superior provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment, so the hospital is liable for the negligence of its doctors and nurses.

Second, the hospital can be sued independently under for corporate negligence, for example if the hospital fails to maintain sanitary conditions, fails to screen employees for proper credentials, or improperly discharges a patient.

The Statute of Limitations

The New York statute of limitations provides a two year and six month window during which you can file a medical malpractice lawsuit. However, if the case involves a foreign object in the patient's body, the lawsuit must be commenced within one year from the day the object was discovered, or reasonably should've been discovered. If the lawsuit is not initiated within that time period, the patient may forever forfeit their legal right to recovery.

Medical Negligence

Most medical malpractice lawsuits are based on the medical negligence theory. The law of medical negligence governs injuries that were accidentally inflicted by a health care professional, such as a doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient. Success depends on persuading the jury that the medical professional's conduct fell below the generally accepted standard of medical care, and that this failure caused the injuries.

Proof entails two parts. First, one must demonstrate what the expected standard of care was; in other words, what the doctor should've done had he or she acted competently. Generally, doctors must recommend and perform treatments as a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.

Second, one must show how a doctor's actual conduct fell short of this standard. As you might imagine, the medical knowledge of most judges and jurors is extremely limited, so an expert witness in the applicable medical field is basically necessary. The expert can analyze a case and provide testimony as to the standard and detail how the doctor's actions were negligent.

Informed Consent

A different type of malpractice theory of liability is used when a treatment is performed without the patient's consent or without warning the patient of all the risks involved with the treatment. Generally, no one can physically harm you without becoming liable for battery. However, anyone can voluntarily consent to potentially harmful contact, such as when a linebacker tackles the running back in a football game.

Similarly, a doctor cannot perform any treatment on a patient without first obtaining his or her informed consent (except for extreme cases where the patient is unable to consent to emergency treatment). The New York informed consent law requires:

• the doctor to disclose all the risks, benefits and alternatives of the treatment;
• the patient to comprehend the disclosure, and;
• the patient to execute a voluntary (non-coerced) waiver consenting to the treatment.

Certificate of Merit

New York requires plaintiffs to complete and sign a Certificate of Merit within 90 days of filing a medical malpractice lawsuit. This Certificate must declare that a case has been analyzed by at least one physician who concluded that there is a reasonable basis for the lawsuit. However, there are exceptions to this requirement, such as when a consultation would result in the expiration of the statute of limitations, or when someone has made three separate good-faith attempts to schedule a consultation and none have agreed.

Damages

Courts universally reimburse successful plaintiffs with monetary awards called damages, which come in two flavors. Economic damages are easily computed because they reflect any financial burdens placed upon the plaintiff resulting from the malpractice, such as medical bills or lost income from inability to work. There's no upper limit to the amount of economic damages you may recover.

Non-economic damages are more subjective, as they are designed to compensate patients for the pain and suffering they've endured as a result of the malpractice. Pain has a price, as juries will consider loss of enjoyment of life, fear and anxiety, sleeplessness, scarring, and disfigurement. Significantly, New York is one of the rare states with no upper limit to the amount of non-economic damages you may recover for medical malpractice lawsuits.

Filing a Lawsuit

You can file a lawsuit at either the Nassau or Suffolk County Supreme Courts by drafting a complaint, which is a brief explanation of the basis of your lawsuit. You can also use small claims court for lawsuits worth $5,000 or less.

The initial steps to a lawsuit are crucial, so you may want to consider scheduling a free consultation with an experienced personal injury attorney. Personal injury attorneys typically work on a contingency fee basis, which means they take a percent of your recovery after your case has settled. If you don't recover (via settlement or judgment), you typically do not have to pay them.

For more general information on these types of cases, please check out FindLaw's section on medical malpractice law.