If you or a loved one has sustained an injury in New York City because of a failure to diagnose, a failure to provide adequate care, or because of an egregious error, DO NOT hesitate to research your legal options. The top NYC injury lawyers at Wingate, Russotti, Shapiro, Moses & Halperin, LLP, can help you better understand your rights. Call (212) 986-7353 to get started.
The first question on many victims’ minds is, who can be held liable for medical malpractice? Almost every healthcare provider and his or her employer is required by law to provide a reasonable duty of care. Hospitals and nursing homes can face legal claims, as well as doctors, nurses, physical therapists, pharmacists, and even chiropractors. It is often advisable for victims of malpractice to file multiple claims against every responsible party to ensure that fair compensation is gained for all the injuries suffered.
Injured patients or surviving family members may pursue a claim or lawsuit against an allegedly negligent medical professional.
Civil cases involving personal injuries have a ticking clock with regards to when you can file a case. Preferably, a victim should begin filing a claim as soon as they can, but the court system understands that not every individual has the time and resources to devote to their claim. Statute of limitations provides a set time period during which a victim can begin filing their claim, generally beginning at the date of the injury.
In the state of New York, medical malpractice cases have a statute of limitations of up to two and a half years from the date of the medical error, or the last date of the continuous treatment. Continuous treatment can include corrective surgeries to fix an earlier error or regularly scheduled tests for a specific medical condition. If the healthcare provider was negligent during these continuous procedures, a patient may file a medical malpractice claim two and a half years after the last scheduled appointment, but only for injuries related to the continuous treatment.
Cases involving medical malpractice in the state of New York are unique because of the Discovery Rule. The Discovery Rule modifies the statute of limitations for a medical malpractice case to a period of time after the medical issue was discovered. In cases such as these, the patient may not know that a surgeon or practitioner was negligent until it negatively impacts them, which could be years after a surgery or test.
In 2018, New York updated the medical malpractice statute of limitations with CPLR-214a. Referred to as “Laverne’s Law,” this law changed the Discovery Rule with two key aspects:
- Foreign Objects: Medical malpractice cases that involve foreign objects have a statute of limitations to within one year AFTER the date of discovery.
- Cancer: Medical malpractice cases that involve the failure to diagnose cancer or a malignant tumor due to negligent actions or omission have a statute of limitations of up to two and a half years AFTER the date of discovery of the negligent actions or omission. The date of discovery must occur within seven years of the negligent action or omission, or after the last date of continuous treatment.
Filing a medical malpractice claim in New York can be difficult for victims, as they may still need continuous treatment for their condition or injury, and do not have the necessary free time to devote to researching their case. These changes to the statute of limitations ensures that victims of medical malpractice have additional time to properly discuss their cases with an attorney. If you suspect you may be a victim of medical malpractice, you should not hesitate to contact a medical malpractice attorney to review your case.
Now that you know who to file a claim against, it is necessary to understand what is required to win a medical malpractice case. In such cases, plaintiffs must prove that:
- They had a doctor / patient relationship with the medical professional.
- The standard of care that they received was outside acceptable behavior for a reasonable health care provider given the circumstances.
- The breach of duty of care resulting in actual harm.
If a jury agrees, or the defendant’s insurance company think it likely that the jury will agree, you can receive fair compensation for your injuries.
Patients injured by malpractice in New York City are entitled to compensation for their resulting medical expenses and future medical expenses related to the breach of care. A successful claim can also result in support for:
- Lost wages, including lost future wages
- Pain and suffering
- Loss of enjoyment of life
- Cost of physical therapy
If the patient died as a result of medical negligence, the victim's family can pursue support for lost wages from the time of injury, loss of companionship, funeral expenses, and other related damages. Unlike other states, New York does not have a cap on the amount of damages a victim can receive in a medical malpractice claim, ensuring that you receive the fair compensation for your injuries.
Here are some of the most common examples of medical malpractice:
- Misdiagnosis - Cases involving misdiagnosis account for a large percentage of medical malpractice complaints. Also known as failure to diagnose, this form of medical malpractice is when a doctor fails to determine the true nature of a medical problem.
- Birth injuries - Injuries to the baby during delivery can include brain damage, broken bones, Erb's palsy, and nerve damage, especially to the brachial plexus. Injuries to a newborn caused by the negligence of medical staff can be one of the most painful things for a family to experience
- Medication errors - These types of mistakes can occur from the initial prescription to the administration of the drug. Common errors include mistakes with dosage.
- Errors during surgery - Several things can go wrong if the staff conducting the surgery is negligent of their duty of care. Common mistakes include anesthesia errors, leaving instruments or objects inside the patient, operating on the wrong side of the body, and surgical fires.
- Delayed medical treatment - Hospitals have a duty to diagnose and treat patients in a timely manner to ensure their conditions do not worsen. Failure to do this can result in prolonged illness, permanent injury, and death.
- Hospital negligence - Hospital negligence includes malpractice by doctors, nurses, medical assistants, and technicians who are staff of the hospital. The hospital itself can be to blame for inadequate staffing, unsatisfactory supervision, or the failure to perform or properly interpret diagnostic tests.
- Wrongful death - When a patient is under the care of medical professionals, undergoing treatment, and dies unexpectedly, questions must be raised about the level of care provided to said patient. If the negligence of medical professionals caused an individual to die prematurely, they could be liable for wrongful death.
Phil Russotti recently obtained settlements for two brain damaged individuals and their families totaling guaranteed payouts in excess of $16,000,000.
This is a case involving the failure to timely deliver an infant to a first-time mother and resulting in severe brain damage to the child who is now 6 years old.
The female plaintiff fell down a flight of stairs at work and suffered a brain herniation that compressed the brain stem, which she contended was due to delayed treatment at the hospital emergency room.
New York lawyer, Philip Russotti, won a $10,200,000 settlement for an infant who has catastrophic neurologic injuries caused by brain damage that resulted from herpes that went undiagnosed in 2003.
A 62 year-old man suffered a stroke following a delay in surgery and discontinuance of a medication (Heparin) which prevents blood clotting.
At an extensive settlement mediation prior to jury selection, Phil Russotti settled a medical malpractice action on behalf of a old man against his neurosurgeon for improperly performing two spinal fusion surgeries.
The plaintiff contended that an orthopedic surgeon failed to take a biopsy before performing surgery to remove a suspected Baker's cyst despite signs on MRI that the growth might be malignant.
Philip Russotti obtained a verdict in a case venued and tried in Hawaii, for approximately six weeks. It was a complex medical malpractice case involving an infant plaintiff who sustained numerous permanent injuries.
Phil Russotti recently obtained the largest jury verdict in Hawaii in a personal injury suit, a $6.15 million dollar verdict for a 14 year old girl who suffered steroid myopathy.
Attorneys with Wingate, Russotti, Shapiro, Moses & Halperin, LLP, obtained a settlement in the amount of $6,100,000 for a 57-year-old union plumber who tripped and fell at a construction site.
Kenneth Halperin, Jason Rubin
The firm settled a case involving a newborn who sustained serious injuries during a double exchange transfusion.
Phil Russotti recently settled a case against five doctors after eight weeks of trial for $4.5 million dollars. The case concerned their failure to timely diagnose appendicitis and operate on a 17 year old boy.
Phil Russotti obtained the second largest medical malpractice jury verdict in the State of Hawaii's history on behalf of a young woman who developed steroid myopathy after administration of excessive amounts of steroids.
The firm recently obtained an extraordinary settlement in an extremely difficult medical malpractice case.
Wingate, Russotti, Shapiro, Moses & Halperin, LLP attorney Jason Rubin obtained a $3.5 million settlement in a case involving the failure to diagnose acute coronary syndrome in a 34-year-old married father of two children.
Phil Russotti and Jason Rubin obtained a $3 million settlement in a medical malpractice/wrongful death case, involving a 59 year old woman who died of ovarian cancer.
Philip Russotti, Jason Rubin
Just prior to jury selection, Jason Rubin reached a $3 million settlement in a case arising out of the death of a 35 year old, unmarried mother of four.
After a month-long trial and during jury deliberations, Jason Rubin settled a medical malpractice/wrongful death case for $2.95 million.
Prior to trial, Jason Rubin obtained a $2.75 million settlement in a medical malpractice case involving injuries sustained by an infant at birth, which lead to his death six years later.
Jason Rubin obtained a $2.7 million settlement in a case involving the death of a 43 year old mother of four as a result of a doctor's failure to diagnose and treat.