In 2020 the State of New York saw 392 medical malpractice claims filed. The number is low, perhaps lower than the number of times New Yorkers received substandard care.
This is because medical malpractice claims are poorly understood, and because they are harder to win than most people think.
Malpractice is About More Than Outcome
An averse outcome, even a death, is not enough to launch a malpractice case. In order to launch a malpractice case, the doctor must have failed to meet an appropriate standard of care. That failure must then result directly in an injury to the patient.
The “standard of care” is something of a moving target. It’s about what another, reasonable physician would have done under the same circumstances. “Reasonable” is arguable, and the same circumstances means there’s some wriggle room as well. We can look to professional standards, we can look to similar cases, but there is often some room for the defense to argue that any doctor would have done the same given the same set of circumstances.
There are cases which are a little more clear cut. If a surgeon sews you up and leaves a surgical sponge inside your body, operates on the wrong body part or conducts the wrong procedure we tend to have a much stronger case. In addition, the New York Department of Health offers protocols and guidelines for specific conditions that we can look to.
Either way, your malpractice lawyers must often use expert witnesses to define the standard of care in your specific case, and to outline how the standard of care you received was different from the norm.
The Anatomy of a Malpractice Settlement
A fair malpractice settlement will include both actual damages and general damages.
Actual damages include:
- Medical bills incurred while trying to correct the damage done by the malpractice.
- Lost wages.
- Additional services that you had to pay for as a result of the damage done by the malpractice.
General damages include:
- Pain and suffering
- Future medical costs
- Loss of earning capacity
Punitive damages are rare in any personal injury case but can happen when the defendant’s conduct demonstrates such a high degree of moral turpitude and dishonesty as to imply criminal indifference to civil obligations. For example, if it is found that your physician was a habitual user of alcohol or drugs and was under the influence while they operated on you then you would have a strong case for punitive damages under New York law.
There is no limit on damage awards.
You have just two years to file a medical malpractice claim in New York, so you don’t have time to waste. The sooner you bring in a lawyer to start evaluating your case and looking for evidence, the better off you’ll be.
We have helped thousands of New Yorkers obtain compensation for their medical malpractice incidents over the years, and we can help you, too.