Establishing grounds for medical malpractice is the first thing you must ensure before taking legal action against the medical professional you believe caused your injury. In order to establish grounds for a medical malpractice suit, the healthcare professional must have acted or failed to act in a manner that was proper for your care and treatment, and which resulted in personal injuries.
A common test used by personal injury lawyers and the courts is to determine if, given the same circumstances, would other medical professionals have conducted themselves in a similar manner in your care and treatment, and would this have prevented your injuries.
In addition, there are specific criteria1 that must be satisfied, including whether:
- There was an existing patient-doctor relationship.
- The medical professional failed to provide the proper duty of care.
- The medical professional breached the standard of medical care.
- The patient was injured due to the medical professional’s negligence.
If you believe your healthcare provider was negligent, then your next step is to arrange a consultation with qualified New York City injury attorneys. In New York, the state has a specific statute of limitations in place. The clock starts ticking when the injury occurred or at the conclusion of ongoing care and treatment during which the injury occurred.2
Filing for Medical Malpractice
You will need to retain the services of a medical malpractice personal injury lawyer familiar with the laws. During your initial consultation, it is a good idea to bring along any medical records, documents, and other forms that can help establish grounds for filing your suit.
Do not worry if you are not in possession of all such records. Your lawyer will review what you have and let you know what other documentation they will need to obtain. In many cases, they will have you sign an authorization for release of your medical records.
Your lawyer will determine an initial potential settlement amount you could receive, based on the extent of your injuries. They will take into account ongoing medical care and treatment you need because of the injury, pain and suffering, present and future lost wages, and other factors. In some cases, you could be entitled to seek punitive damages if the medical professional behaved in a reckless manner that resulted in your injuries.3
Talking to a lawyer and filing a medical malpractice suit does not require any upfront legal retainer fees. Your lawyer will explain how much you will owe them should they reach a settlement or win your case during trial.
Your lawyer will conduct an investigation wherein they will consult with other medical experts, gather the required documentation, and start to build your case. Once they have everything they need, they will file a complaint in the appropriate court. In New York, cases valued at more than $25,000 are filed in New York Supreme Court. For values under $25,000, the case is filed at the Civil Court level.
One your case has been filed in court by your New York personal injury attorney, the next step is to have the summons and complaint served on all parties you are suing. This could include the medical professional, the healthcare facility they are employed by, and others. Your injury lawyer will determine if more than one party was negligent and responsible for your injuries.
Wait for a Formal Response
Once any summons and complaint has been served, the process server will return a signed affidavit signifying all parties have been notified. At this point, the defendant or defendants have thirty days to file a formal response to your initial complaint.
The response must be written and filed through the court. Once received, your lawyer will review the responses and may amend your original complaint. If no responses are received by the court by the deadline, then your initial complaint is considered to be true and the responsible parties are admitting negligence.
As the lawsuit proceeds, the next step is the discovery phase. This is where your lawyer and the defendant’s lawyer exchange information about the malpractice suit.
You may be required to respond to specific inquiries from the other party’s lawyer, such as providing specific documents, medical billing statements, or even agreeing to an independent exam by a third-party physician.
Some medical malpractice lawsuits may settle prior to trial. The medical professional’s malpractice insurance provider may attempt to negotiate a medical malpractice settlement. The negotiation process may begin early on in the discovery process.
However, initial settlement offers may not be deemed reasonable by your lawyer. While accepting or rejecting settlement offers is ultimately the decision of the injured victim, listening to the advice of experienced medical malpractice attorneys is important. Accepting an undervalued settlement offer, while tempting, can be short-sighted.
Once a medical malpractice suit settles or goes to verdict at trial, you will be required to sign various documents which officially conclude the lawsuit. Your attorney’s legal fee will be calculated out of the settlement value of your case, based upon the Retainer Agreement you signed with your attorney.
Proceed to Trial
If a fair and reasonable settlement agreement cannot be reached, then your case will proceed to trial. Even during trial preparation, your lawyer and the defendant’s lawyer may still be negotiation a possible settlement agreement.
During the trial, both your lawyer and the defendant’s lawyer can call witnesses, experts, and others to the witness stand to provide evidence. Any witnesses called to the stand are sworn in and can be cross-examined by the other party’s lawyer.
After all the witnesses have been called, the lawyers will present closing arguments to the jury. At this point, the jury must decide on a verdict in the case. Keep in mind, your lawsuit is a civil action.
Unlike a criminal trial where a jury must decide “beyond a reasonable doubt” whether the defendant is guilty or innocent, in a civil trial, jurors must determine whether the defendant was negligent and the extent their negligence contributed toward your injuries.
The verdict will determine if the defendant is liable for your damages and if so, the amount of damages you should be awarded. In cases where there are multiple defendants, the jury will evaluate each defendant individually with respect to the amount of negligence they contributed.
Can the Verdict Be Appealed?
If either party believes that mistakes were made at trial, they do have the right to file an appeal with the appropriate court in New York.
As you can see, how long does a medical malpractice suit take to go from filing to award largely depends on the specific circumstances of your case and the willingness to negotiate fair settlements by the insurance company. Our lawyers understand you might start to feel frustrated because it is taking so long. However, just remember that we are working in your best interests to ensure you receive a fair and just settlement.
If you were or a loved one was injured due to the negligence of a medical professional or another healthcare provider, it is in your best interests to speak with our personal injury New York law firm as soon as possible. You could potentially have grounds to file a malpractice suit.
To schedule a free initial consultation, call The Dearie Law Firm, P.C. at (212) 970-6500 now. Our law firm and New York City injury attorneys are available 24/7.