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New York Medical Malpractice Attorney

About New York Medical Malpractice

The medical profession is a vital element of modern society. It provides people with relief from pain and suffering, and effective recovery from injury and disease so they can continue to engage in their daily living activities, whether personal or professional, without interruption. It provides aspiring mothers with the assurance that their babies will be delivered with the utmost care and patience, and that they themselves are safe from harm and potential complications. These are just a few examples on a very long list of the medical profession’s functions. In summary, it makes sure that we are healthy and continue to remain so, which is an obvious priority for any sensible human being. However, patients can also be the victims of egregious and inexcusable medical errors by careless and incompetent “professionals” that can only be truly rectified with the help of experienced medical malpractice lawyers. Statistics from the Institute of Medicine of the National Academy of Sciences cite nearly 100,000 deaths per year in United States hospitals due to some form of medical malpractice, which is an understandably frightening number for any individual receiving hospital treatment.

In recent times the insurance industry has led a multi-million dollar advertising campaign focused on minimizing the legitimate grievances of medical malpractice victims. This campaign makes the utterly false claim that lawsuits against medical providers are frivolous and unjustified. The insurance industry’s goal in running these advertisements is to protect their clients from legal accountability and to gain further profits. After all, insurance companies are businesses. Unfortunately, this advertising campaign has successfully manipulated the general population to believe that unfounded medical malpractice lawsuits have caused medical malpractice premiums in New York (and many other states) to increase dramatically, and in turn, mass quantities of New York physicians have been forced to leave the state in search of better job opportunities. The purpose of this lie has been to bully state legislatures across the country into passing laws that place “caps” or limits on recovery, denying full and fair compensation to genuine victims of medical malpractice. Thankfully, no such law exists in the State of New York at the present time.

If you or a loved one was the victim of medical  malpractice and sustained injuries or someone close to you has died due to medical error, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation regarding your legal rights to obtain full and fair compensation and damages due to your harms and losses.

What is Physician Malpractice?

Medical malpractice is the negligence of a medical provider and physician negligence is a departure or deviation by a physician from the accepted standard of practice under the circumstances. When a physician renders a service to a patient, he or she is required to have an average degree of skill and knowledge for a reasonably prudent doctor in that specific field providing that service as well as a degree of skill and knowledge that meets the minimum standard of care in both the State of New York and the United States. Physicians are required to be cognizant of new developments and breakthroughs in their respective fields and are required to utilize any knowledge and skills they possess in providing medical services, even if those attributes exceed the average level of knowledge and skill for a physician in that field. If a physician makes a treatment decision for a patient that deviates from or falls short of these standards or does not reflect his or her best judgment, he or she may be held liable if that decision contributes to harm being brought upon the patient (regardless of whether the physician was paid for the medical services).  Common causes of physician malpractice are:

  • A mistake in diagnosis;
  • A failure to diagnose;
  • A delay in diagnosis;
  • A failure  to adequately or properly treat  a patient;
  • A failure to take appropriate tests;
  • A failure to properly monitor  a patient’s condition or illness;
  • A failure to refer patients to appropriate specialists;
  • A failure to follow accepted standards of practice;
  • A failure to sufficiently or adequately examine a patient;
  • Ignoring a patient or his or her’s presenting signs, symptoms or complaints;
  • A failure to keep records or accurate records;
  • A failure to properly advise a patient of  test results or of the gravity of one’s illness or condition;
  • A failure to prevent or properly treat infection.

It is important to note that a physician’s decision to perform a medical service does not guarantee a good result for the patient, and a bad result does not automatically subject the physician to liability. Accordingly, in cases where multiple methods of treatments are available, a physician’s “error in judgment” in choosing an unsuccessful course of action for treating a patient does not subject him or her to liability as long as that course of action is one that is medically accepted and one that a reasonably prudent doctor would choose. If a physician fails to meet any of these requirements and that failure is a substantial factor in causing harm to a patient, that physician is responsible for the resulting injuries. If you or a loved one was the victim of physician malpractice and sustained injuries or someone close to you has died as a result, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation regarding your legal rights to obtain full and fair compensation and damages due to your harms and losses.

What is Hospital Malpractice?

Restating from the above explanation of physician malpractice, medical malpractice is the negligence of a medical provider. Therefore, hospital malpractice is negligence by a hospital in failing to uphold the standard of care practiced by other general hospitals in the community as well as in failing to abide by state and national requirements. This standard of care includes a duty to exercise reasonable judgment in hiring and supervising its employees including both medical and non-physician personnel. In proving hospital malpractice, a judge or jury must find that a hospital conducted itself negligently, or in other words in a way contrary to the customary standard of care practiced by other general hospitals in the community under the same circumstances or contrary to the regulations set forth by the state or federal government, or even by the hospital itself.

The standards set forth by the State of New York in order to regulate hospitals address a wide range of issues concerning medical and nursing staff, patients’ rights, infection control, medical records, incident reporting, and services involving surgery, anesthesia, laboratory work, emergency treatment and outpatient treatment. For example, these standards include important restrictions on interns such as the amount of consecutive and total hours that interns are allowed to work in a given week as well as mandates requiring hospitals to have policies in writing regarding which procedures or treatments interns can perform under general supervision by a physician as opposed to direct visual supervision by a physician.

There are two primary ways by which a hospital may be held liable for injuries sustained by a patient under their care:

  1. Vicarious Liability: Under the legal theory of “respondeat superior”, an employer, in this case a hospital, can be held liable for the malpractice of its employees.
  2. Direct Liability: A hospital can be held liable for breaches of the duties it has to its patients.

Types of Hospital Malpractice

Hospital malpractice can take many forms.  It can be based on:

  • A mistake in diagnosis;
  • A failure to diagnose;
  • A delay in diagnosis;
  • A failure of the hospital staff to adequately treat or monitor a patient;
  • A failure to take appropriate tests;
  • A failure to monitor or stabilize a patient’s condition;
  • A failure to refer patients to appropriate specialists;
  • A failure to follow accepted standards of practice;
  • A failure to sufficiently and/or frequently examine a patient;
  • Ignoring a patient or his or her’s presenting signs, symptoms or complaints;
  • A failure to keep records or accurate records;
  • A failure to prevent or properly treat infection;

Likewise, improper treatment such as the incorrect administration of medication (wrong medication or wrong dosage), improper use of anesthesia, improper use of medical equipment, and unnecessary  surgery or surgery without proper consent may rise to the level of actionable hospital malpractice.

What are a Hospital’s Duties to its Patients?

There is a long list of activities that fall under the duty of reasonable care owed to a hospital’s patients that, if handled negligently, may hold a hospital liable in the event of an injury sustained by one of its patients, including:

  • The need to correctly and properly communicate between departments, staff and physicians
  • The practice of reasonable care to protect patients from unnecessary harm
  • The selection, maintenance and use of proper equipment and facilities specifically tailored for patient use
  • The evaluation of the qualifications of physicians who have staff privileges
  • The administration of blood tests and other necessary diagnostic tests
  • Blood transfusions
  • The accurate following of orders left by patients’ physician
  • The need for competent staff and employees to follow all proper and necessary protocol and procedure especially when utilizing potentially dangerous instruments and equipment
  • The protection of patients’ welfare from harm inflicted by others
  • The adequate staffing of security for patient protection

There does exist what is called a “sliding scale of duty” for hospital liability, which means that the scope of a hospital’s duty corresponds and extends to risks of harm to patients that are reasonably foreseeable. It is also important to note that the scope of a hospital’s duty does not extend to private physicians who are not directly employed by it, unless the actions of the private physician are so contradictory of good and accepted medical practices that a hospital employee of ordinary prudence would require inquiry into the physician’s orders.

If you or a loved one sustained injuries or someone close to you has died due to hospital malpractice, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation regarding your legal rights to obtain full and fair compensation and damages due to your harms and losses.

What is Informed Consent?

Before obtaining consent from a patient for a treatment, procedure, operation, etc., a physician and/or hospital has a duty to provide certain information to the patient and to explain those facts in terms that the patient can understand. There are five pieces of information that a physician must make the patient aware of before obtaining consent:

  1. The patient’s current physical condition
  2. The purposes and advantages of the treatment
  3. The reasonably foreseeable risks to the patient’s health associated with the treatment
  4. The reasonably foreseeable risks to the patient’s health associated with no treatment
  5. The available alternatives with their associated advantages and risks

According to Public Health Law 2805-d(1), “lack of informed consent” is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.” In the event of harm being brought to a patient who did not give the treating physician proper informed consent, if a reasonably prudent patient’s evaluation of the treatment options would have differed had proper informed consent existed, then the treating physician may be liable for damages sustained by the patient.

There are four situations where a physician’s disclosure of information to a patient and the patient’s informed consent is not required:

  1. The risk not disclosed is too commonly known to warrant disclosure
  2. The patient assured the physician that he or she would undergo treatment regardless of any risks involved or told the physician that he or she did not want to be informed of the risks involved
  3. It was not reasonably possible to obtain consent from the patient
  4. The physician used his or her reasonable discretion in not disclosing certain information in the belief that disclosure could possibly adversely and substantially affect the patient’s condition

When determining whether a particular course of medical treatment is in your best interest, you rely upon information given to you by your health care provider to help you make the proper decision.  In plain English, this information must include the nature of the treatment to be revealed, in as much detail as reasonable and comprehensible to a layperson, and all potential risks associated with starting or foregoing said treatment. In addition, if other options exist that the patient may consider preferable, he or she must, too, be made aware of those alternatives.

That information enables you to offer informed consent, which is required for a health care professional to perform any kind of procedure with the exception that when a patient requires emergency life-saving treatment and cannot grant informed consent due to the illness or injury, a doctor will take the necessary actions to attempt to save the person’s life.

The issue of informed consent is a difficult one in courts, because it depends heavily upon variables that are not clearly defined such as someone’s understanding and thought process, even when a typewriter or pre-printed “consent form” has been signed by a patient.

If you or a loved one were not properly informed of the details or if a procedure was performed without your consent and you are now suffering with injuries, disability or chronic pain, you may have been the victim of medical malpractice attributable to lack of informed consent. To prove this in court and prevail under the law requires persuading the judge or jury that had you reviewed all the relevant information, you would have chosen differently.

A professional error such as this can be the cause of severe physical, financial and emotional consequences for an individual or family, and the lawyers at the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., who have a high level of expertise in fighting against negligent medical providers, are here to help their clients to regain the stability and dignity that they deserve.

If you or a loved one sustained injuries or someone close to you has died due to a physician’s failure to obtain proper informed consent before selecting a course of treatment or a lack of treatment, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation regarding your legal rights to obtain full and fair compensation and damages due to your harms and losses.

What is Statute of Limitations?

Statute of Limitations refers to the amount of time one has to start a lawsuit against all responsible parties by filing a Summons and Complaint in Court.  If  a lawsuit is not timely commenced within the applicable statute of limitations, then the ability to sue is forever lost.  Generally, a Summons & Complaint relating to medical malpractice is governed by a two and one-half (2½) year statute of limitations which means that a victim of malpractice must start the lawsuit within two and one-half (2½) years subsequent to the date when the negligent act or omission by the health care provider occurred.  This is a different statute of limitations than the three (3) year statute of limitations which normally governs ordinary negligence cases that do not involve medical malpractice such as motor vehicle accidents, premises liability and various other types of negligence.

Distinction between malpractice and ordinary negligence affecting the statute of limitations

It is important to realize that not every act of misconduct with respect to a patient constitutes medical malpractice and sometimes the distinction between ordinary negligence and malpractice can be blurred which may result in a different statute of limitations.  For instance, the failure to take proper medical histories constitutes medical malpractice, but the failure to provide competent personnel or to promulgate appropriate emergency room rules is negligence and not malpractice.  In another example, negligent hiring of an employee who subsequently commits an act of malpractice is a violation of a general duty to a patient, rather than an integral part of medical treatment, and is subject to a three (3) year statute of limitations as opposed to the two and one-half (2½) year statute.  Sometimes there may be the need for specialized professional knowledge and expert testimony in order to determine whether a situation giving rise to injuries and damages is the result of medical malpractice rather than ordinary negligence.

Infancy (someone under the age of 18) affecting the statute of limitations

Of course, there may be exceptions to the applicable statute of limitations which tolls the amount of time one has in order to start a lawsuit.  For instance, if there is an infant, which is somebody under the age of eighteen (18), who has been the victim of malpractice, the period of time an infant has in order to commence a lawsuit is tolled until the infant reaches eighteen (18) or sooner dies, but in no event for more than ten (10) years from the date of the act or omission giving rise to the medical malpractice.  Therefore, the ten (10) year limitation on the infancy toll begins to run at the time of the original negligent act or omission and may not be tacked to the end of a period of continuous treatment.

Discovery of a foreign object left inside a patient affecting the statute of limitations

In terms of discovery of a foreign object which was left inside a patient unbeknownst to the patient, if the operation was performed on or after July 1, 1975, the action is timely if brought within two and one-half (2½) years after the operation, or within one (1) year after actually discovery of the foreign object, or discovery of facts which would reasonably lead to such discovery, whichever is earlier.

Continuing or ongoing treatment affecting the statute of limitations

Additionally, when there is a malpractice claim arising out of malpractice committed during a course of continuous treatment which is related to the original condition or complaint, the statute of limitations will be tolled until the end of the course of continuous treatment of the patient by the defendant.  This is the result of the premise that it is in the patient’s best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because the doctor not only in a position to identify and correct his or her malpractice, but is best placed to do so.  However, issues involving the tolling of a statute of limitations based on continuous treatment are very complex and require a thorough investigation and analysis by a competent and qualified attorney.

At the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., all potential medical malpractice cases are fully evaluated and we consult only the most respected medical experts in their respective fields in order to gain the fullest understanding of whether a doctor, surgeon, hospital, etc. has truly acted in a negligent manner before a suit is filed. We take pride in ensuring that doctors who put their patients’ well-being and even their lives at risk are held accountable and that our clients receive full compensation for their harms and losses and they receive the justice and dignity that they deserve.

HOW WE CAN HELP YOU

Ira Perlman and Robert Rosen have over 30 years of experience in winning their clients full and complete monetary compensation for their harms and losses as well as the respect and dignity they so justly deserve.  Mr. Perlman is a tenacious and seasoned trial attorney who has been successfully trying his clients’ cases as well as cases referred to the office from other attorneys for over 30 years.  Mr. Rosen, with his adept litigation and writing skills has navigated clients’ lawsuits inside and outside the courthouse in order to achieve the excellent results that generate their ongoing success.  The Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. are prepared to expend all of the necessary resources, financial or otherwise, in order to investigate and prosecute your case including retaining all necessary medical and/or technical experts in the relevant areas and fields and taking your case to verdict at trial if the insurance companies who represent the wrongdoers do not want to fully and fairly compensate you and your loved ones. If you, a family member or a loved one has become a victim due to an accident, medical malpractice or a serious injury and you would like to achieve optimum results relating to your claims, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. at 212-689-5000 for a free initial consultation.