What Constitutes Medical Malpractice?
Malpractice lawsuits in NYC can be pursued any time negligence from a medical provider (doctors, dentists, therapists, pharmacists and facilities, including hospitals and clinics) is responsible for adverse effects on a patient. Proof of negligence falls on the plaintiff in all NYC malpractice lawsuits. The types of injuries covered by these laws include but are not limited to the following:
- Anesthesia errors
- Birth injuries (cerebral palsy and other brain damage)
- Consent prior to medical procedures improperly retained
- Diagnostic delays
- Negligence of any kind
- Prescription drug errors
- Surgical errors
- Treatment improper or inappropriate for medical conditions
Specific laws on Medical Malpractice in NYC
As one might expect, medical malpractice in New York City has well-established precedents that help define the laws affecting injury claims against negligence in a healthcare situation. If you think your adverse medical event qualifies for litigation under NYC medical malpractice laws, consider these past decisions:
When a defendant agrees to liability for negligence or error, they can do so with an agreement to arbitrate damages. NYC medical malpractice law also authorizes HMOs (health maintenance organizations, broadly defined) to have written agreements with members to arbitrate medical malpractice claims, but allows members to opt out if they so choose.
Attorney fee caps
The contingency fees earned by attorneys diminish with the size of the judgment or settlement: 30 percent of the first $250,000 awarded, 25 percent of the next $250,000, 20 percent on the next $500,000, 15 percent of the next $250,000 and 10 percent of all amounts over that ($1.25 million on up).
Collateral source rule
Medical malpractice law in NYC allows reductions of judgments if the claimant receives benefits related to the injury from other sources, including reduced payroll tax on income that might otherwise have been earned if the individual had been working at full capacity.
Compensation funds and physician insurance nonexistent
Unlike in other states and cities, patients in New York have no patient compensation fund to access. Also, licensed physicians are not required to carry liability insurance.
NYC medical malpractice laws have no limitations on recoverable damages.
Damages payout schedules, variances and limitations
For judgments exceeding $250,000, those awards must be made according to an agreed-upon schedule. Damages attached to future pain and suffering need to be paid out over 10 years or less, sooner if the victim dies before that or if an alternative agreement is reached.
Acts deemed negligent by non-employee medical staff of hospitals render those hospitals or other care facilities as not vicariously liable under NYC medical malpractice law. An exception is with emergency physicians and other qualified and professional healthcare professionals who work as independent contractors.
Testimony by experts
Unlike in many other jurisdictions, an expert witness in New York is not subject to pre-trial disposition unless otherwise agreed to by both parties. NYC medical malpractice laws do require complainants to file a certificate that indicates an expert has or will not be consulted on a case, except when res ipsa loquitur is in effect (i.e., the simple facts of the case speak for themselves).
These laws are complex but fair—established over time to answer the needs of patients and their providers. Julien & Schlesinger attorneys understand this and work with patients who best qualify with legitimate claims under the law.
If you believe you have been a victim of medical malpractice, contact NYC medical malpractice lawyers Julien & Schlesinger, P.C., or call 1-866-915-3451.
Call the NYC medical malpractice law firms, Julien & Schlesinger, P.C. regarding NYC malpractice law suit, case, and settlements.