Medical Malpractice FAQ’s


Q: Can you file malpractice against someone other than a doctor?

  • A: A medical malpractice suit can be filed against any individual or entity that provides health care. This would include, for example, doctors, nurses, technicians, physical therapists and podiatrists.

Q: Can you sue for what might have happened?

  • A: While it is distressing to learn that a medical procedure may have resulted in a very undesirable outcome such as permanent injury or even death, it’s not generally feasible to sue for what “might” have happened, particularly if there was not any negligence.

Q: Do most cases go to trial?

  • A: Malpractice claims tend to be a fight all the way to the Courthouse and are settled less often than most other cases, which also means they can take more time and incur more expenses.

Q: How can I afford to hire an attorney to represent me?

  • A: Our office, like most attorneys in New York State will accept medical malpractice cases on a contingency fee basis. That means you don’t have to pay an attorney fees unless the case is settled favorably or you prevail at trial. You generally do have to pay expenses associated with your case, regardless of whether you win or lose. The contingency fee in Medical Malpractice cases in New York is set by Statute on a “sliding scale” basis.  Although malpractice cases tend to be more complex than other personal injury cases, the “sliding scale” actually results in a lower legal fee on the amount recovered than those in automobile accident or other negligence cases.

Q: How can I find out if a doctor has been previously been sued for malpractice?

  • A: There are a number of ways to check on this including a website which will provide relevant information about a New York doctor’s background, training and experience and some limited information regarding prior malpractice claims. See New York State Physician Profile

Q: How do I know if I have a medical malpractice case?

  • A: A bad medical result doesn’t necessarily mean you’ve experienced malpractice. Even with the best of care, things can go wrong. Generally, to win a medical malpractice case, you must have expert medical testimony that no reasonable health care provider would have done what yours did. Reasonableness is generally determined by looking at what is reasonable care in view of the:
  • Available knowledge
  • State of medical practices at the time of the illness or injury

You must also prove through expert testimony that the negligence or deviation from accepted medical practice of your health care provider was a substantial factor or cause of an injury or death. A doctor can deviate from accepted practice, for example, and still not be liable, if the injury or death was caused by some other factor.

Q: How do I obtain my medical records?

  • A: The Public Health Law in New York State allows a patient the legal right to obtain copies of their medical records. A request for copies of the medical records, made in writing, is presented to the medical facility. It will take time to obtain the records, and frequently requests need to be made in a number of areas. You may need to contact a number of service providers. Often, there is a per page copy charge assessed to obtain these records and in New York, the charge may not exceed .75 cents per page.

Include with your request:

  • Your exact, correctly spelled name and/or any other names you may have been known as, especially at the time you received treatment
  • Your social security number
  • Your date of birth

Q: Is a misdiagnosis malpractice?

  • A: Not necessarily. Medicine is not an exact science and errors in diagnosis can be made. The law does not require doctors to be right all the time but rather that their actions must meet the standard of care that is generally, what a reasonable doctor would do in the same or similar situation.

Q: Is there a minimum or maximum amount that can be recovered?

  • A: No. This depends on injury and extent of damages. There are no set guidelines and damages are usually determined by what is “fair and reasonable” compensation.

Q: What does “preponderance of evidence” mean?

  • A: Preponderance of evidence is evidence that is more convincing than the evidence that is offered in opposition. It is whatever is more probable than not or has a greater weight.

Q: What expenses are generally paid by a settlement for a malpractice case?

  • A: Generally, state law controls what a malpractice settlement takes into consideration. The following are commonly covered:
  • Compensation for pain and suffering
  • Past, present and future medical expenses for treatment of the injury caused by the medical malpractice
  • Other financial damages and economic damages that the malpractice caused including lost earnings.

Q: What is a normal settlement amount?

  • A: There is no normal or set amount in recovering damages from medical malpractice. Every case and injury, just like the people they represent, is different. There are many nuances that determine a reasonable settlement amount, such as:
  • Impact the injury has on earning capacity
  • Impact the injury has on life functions
  • How the jury perceives the injured party
  • The atmosphere in the geographic area concerning medical malpractice

Only an attorney can give you an idea of what type of settlement you might be entitled to.

Q: What is “comparative negligence”?

  • A: Comparative negligence is an injured person’s failure to exercise due care which contributes to the injury. It has been our experience that in malpractice cases, a potential claim may be weakened when a patient fails to advise a doctor of symptoms or complaints or fails to follow the advice of their physician. One example of comparative negligence in a failure-to-diagnose case would be if a doctor recommends that the patient undergo a screening exam for cancer and the patient neglects to follow through with the doctor’s instructions, only to be diagnosed with cancer later.  Comparative negligence in New York State is not a bar to bringing an action, however, if a case goes to a trial and a finding of malpractice is made against the doctor or hospital, a finding of comparative negligence against the plaintiff may reduce any award by the patient’s own negligence.

Q: What is “informed consent?”

  • A: When a doctor is going to perform a procedure, he or she is required to advise the patient of the procedure that is going to be performed as well as all the possible consequences. This is referred to as “informed consent.” If the doctor doesn’t do this, it might lead to a medical malpractice case. There are some instances where a doctor isn’t required to obtain an informed consent, such as a case where the patient is unconscious, a family member can’t be reached in an emergency or if there isn’t a living will. These types of cases are governed by the New York State Public Health Law which provides that it must be established that a “reasonably prudent person” in the patient’s position would not have undergone the treatment or diagnosis if they had been fully informed and that the lack of informed consent is a “proximate cause” of the injury.

Q: What is the statute of limitations for a medical malpractice suit?

  • A: The Statute of limitations for most medical malpractice cases in New York State is two and one half  (2 1/2) years from the date of the alleged malpractice.  There are some limited exceptions which may extend the time limit which may include the “continuous” treatment doctrine” as well as special rules for minors.  These exceptions may be narrowly applied and you should consult with an attorney immediately, if you believe you have a valid claim and not try to determine your time limits on your own.


Q: What’s the medical malpractice “standard of care”?

  • A: New York State law determines how negligence is defined and medical malpractice is the negligence of a medical professional. The “standard of care” is generally defined by the medical community. It’s not the measure of what is optimum care or even the measure of what an expert thinks should have been done in hindsight. The issue is whether any reasonable physician could have done what the doctor in question did, based on the available information. Help defining “good and accepted practice” can come from a medical expert’s experience, medical texts, literature and publications from National Boards of the various medical specialties. New York law requires that the standard of care the doctor deviated from must be established at trial by expert testimony

Q: When should I settle my case?

  • A: If you receive a settlement offer, you should consider it with the advice and guidance of your attorney.

Q: Why do attorneys turn down malpractice cases?

  • A: There can be a number of reasons why an attorney won’t take a case, including:
  • There isn’t a credible expert to say there has been malpractice or that any malpractice was a cause of the injury or death. Without such expert testimony, cases generally cannot prevail in court.
  • The cost of bringing a case to trial exceeds what the case could reasonably be expected to return. It is generally very expensive to obtain the medical experts necessary to even get the medical malpractice case into a courtroom. And, these days, insurance companies are less likely to settle in this area and more willing to take cases to trial. This drives up the costs of suits for victims. So, many a personal injury lawyer concludes that it’s not economically feasible to bring what may be a “good” liability case to court. This is not necessarily because the lawyer is greedy, but because the lawyer does a client a disservice by bringing a claim that he or she knows may leave the client in the financial hole even if they “win” the case.
  • The severity of the injury caused by the malpractice is an important consideration. A truly serious injury with long-term consequences, such as injuries during birth, a heart attack, stroke or permanent disability are more likely to bring a viable lawsuit than a minor, temporary injury.

Q: Why do I have to have an expert establish that I was harmed?

  • A: In order to prevail in a medical malpractice case, you must prove that the standard of care wasn’t followed and as a result of that “deviation from accepted practice” you suffered harm. The courts have come to recognize experts with experience, training and an understanding of the level of care associated with a particular medical procedure as being able to attest to or gauge the standard of care provided.

*Notice: the foregoing is for general informational purposes only and not to be construed as legal advice.  You should consult with an Attorney to determine your legal rights and whether or not you may have a valid claim.