NY Medical Malpractice - Are Injured Victims Money Hungry?

By Gerry Oginski

If you believe all they hype by "tort-reform" zealots, every injured victim is a 'money-hungry, selfish and health-care destroying monster."

Contrary to all the hype, practically every single injured medical malpractice victim who walks in my door is just the opposite. Here's what I mean:

The people who come to me never started off their medical treatment by looking for a lawsuit. Instead, they went to a doctor or hospital to get better; to get treatment they needed; or to get checked to make sure they did not have any dangerous medical condition. They did not go to the doctor's office hoping the doctor would do something wrong, and cause them serious permanent harm. They didn't go to the doctor's office hoping the doctor would screw up and they would 'rake in the cash'! Nobody is that foolish. In fact, almost every person who comes to me for advice is almost apologetic that they're coming in searching for answers. Many potential clients tell me "We're not looking for money...we just want justice." "We want to make sure this never happens again..."

It is days, weeks and months later do these potential clients wonder how they will survive financially as a result of their diminished earning capacity and their lost time from work. Who will pay for their health insurance premiums if they cannot work? Who will buy the groceries, pay the mortgage, the medical bills? How will they pay for their children's school tuition and camp if they cannot return to work? Those thoughts usually come after the healing process, assuming there is one.

There are many "reformists" who argue that there should be an artificial and arbitrary limit to an injured victims' pain and suffering compensation. Does that mean that even when an injured victim has unrelenting pain that never goes away and limits their daily activities, that the most compensation they can receive is an arbitrary number created by someone who has never had that type of pain? Is that fair?

Does a patient seeking a doctor's help truly seek to destroy the health-care system and how insurance companies reimburse doctors? The patient just wants to get better. They want treatment that will let them continue on with their lives unobstructed and free from limitation. Does a patient want a doctor to commit malpractice so his or her life can be destroyed and ruin his job and his family life just to bring a lawsuit? Such thinking is incomprehensible.

On the other hand, I am sure there are many good physicians who wake up each morning and say to themselves "I'm going to do the best I can today." I don't expect there are any physicians who wake up and say "Let's see how many patients I can screw up today so they can sue me for medical malpractice."

However, malpractice occurs when a physician is careless and departs from good and accepted medical care in the State of New York; when there is a lack of communication; where someone drops the ball and misinterprets a radiology report or a pathology report leading to incorrect or improper treatment. A failure to diagnose is always significant, especially if the failure leads to the patient needing additional treatment that otherwise he would not have needed if the condition had been timely and properly diagnosed.

Surgery and anesthesia errors are always signficiant. Many of those mistakes lead to the patient needing additional corrective surgery, or possibly lead to an untimely and wrongful death. Having practiced personal injury law and medical malpractice law for almost twenty years now in the greater New York metropolitan area, I recognize that medical mistakes and errors happens with doctors that are board certified as well as doctors that are not board certified. There are excellent doctors who are well qualified, yet in some cases, those doctors may be careless and that carelessness may have caused significant harm to the patient.

Getting back to the original premise of this article: Are injured medical malpractice victims 'money-grubbing, selfish, health-care destroying' people? Or are they just stuck in the unfortunate position of having been the recipient of improper medical care that has now turned their life upside-down? You decide.

I hope that all of your medical care goes well and you do not need the services of an experienced medical malpractice lawyer practicing law here in the State of New York.

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice, wrongful death and injury cases since 1988. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office. Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 200 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something for you. For more information, call him personally at 516-487-8207.

Clinical Or Medical Negligence Claims in the UK

Medical negligence is where doctors or any other professional in the medical profession have been found in breach of a duty of care. For example if a doctor failed to diagnose a medical condition or diagnosed the wrong condition this would be classed as medical negligence.

Doctors, dentists, midwives, nurses, physiotherapists, psychologists and psychiatrists all have "duty of car" to ensure their patients receive the correct treatment in a proper ethical manner. If you or someone feels that they incurred an injury or suffered emotionally because one of these medical professionals not doing their job probably then you maybe able to make a medical negligence claim against them or the organisation they work for. Maybe the treatment you received went wrong in which case the treating doctor is required by his governing body the "General medical Council" to inform the patient that the treatment went wrong. At the very least you are entitled to an explanation.

Injuries such as these can arise out of for example, cancer treatment, accident and emergency treatments, anaesthetics, cardiothoracic surgery, cardiology, gastroenterology, oncology, keyhole surgery, mental health, neurosurgery, obstetrics and gynaecology, oncology, ophthalmology, orthopaedics, paediatrics, plastic surgery, psychiatry, sterilisation, urology, dentistry, vascular surgery and the list goes on. Also if you or a family member suffered brain damage or psychological injuries like nervous shock or the worst scenario death these are fine examples of medical/clinical negligence.

It is not just patients of the NHS, those who were treated in private hospitals as private patients will also be able to claim for breach of contract if your medical treatment was substandard.

Claiming financial compensation for clinical or medical negligence can be quite a lengthy and complex matter. Because of which it is paramount that you enlist the help of a professional personal injury specialist. If this puts you claiming it shouldn't. When someone claims for personal injuries (compensation) for a road traffic accident it is generally easy for your personal in jury lawyer to establish who was at fault and whether the injuries were due to that accident. If the accident wasn't your fault, and your injuries were obviously related to the accident (like whiplash), you will have a strong case. With claims against the medical profession the claimant will need to obtain medical records and get statements to prove that:

• That there were serious errors in your medical treatment which no competent doctor would have made
• The doctor or other healthcare professional owed a duty to take care of the claimant and not cause injury
• There was a breach of that duty to take care
• That breach of duty has caused harm to the claimant
• Damage or other losses have resulted from that harm

Claiming compensation for clinical/medical negligence is your civil and legal right. Without claiming you could be putting someone else at risk. Sadly it take unfortunate situations like a medical error of judgement to occur for people in the medical profession to wake up and make changes to their practice to ensure this type of malpractice doesn't happen again.

Medical Negligence - Dental Malpractice

Any kind of negligence or poor quality dental care can be defined as dental malpractice. Having a dental treatment can be an unnerving experience and damage or side effects can occur; however in some cases this is often unavoidable.

Dentists have as duty of care towards patients to ensure that they receive proper treatment and the majority of dentists are successful in helping their patients to achieve good oral health. Dentistry is a difficult and rewarding profession and the medical practitioners involved in this skilled profession work long hours and use the best equipment to get surgery completed with minimal discomfort.

The average person probably doesn't understand much about dental treatment and because of this we put our full trust and confidence into the dentist working on our teeth. In order to protect us when it comes to the dental work that we have carried out the General Dental Council (GDC) was set up. The GDC regulates the dental professionals within the UK and works to protect patients and promote confidence in the dental profession. This is because all dental patients are entitled to high standards of professional and personal behaviour from those providing their care.

As part of their duty to protect the public the GDC have always had the power to take action by either removing or restricting a dental professional's registration on the Dental Professionals' Register. This gives you peace of mind that if the worse does happen that action can be taken against the dental professional who caused that damage.

If the worst happens when you are undergoing your dental treatment and you end up suffering as a result you could be entitled to make a claim for compensation. If the standard of care shown by a dental practitioner slips below the acceptable level then you may have a case for compensation. Below are just a few example of what constitutes being medical negligence when it comes to dentistry:

• Failure to fully detect an oral disease or malformation

• Improper utilisation of dental or surgical utensils

• Installation of defective dental products

• Personal injury to oral cavity or surrounding bone and tissue

• Wrongful death due to dental procedures or anaesthetic

Dental malpractice can occur under a number of different circumstances such as a missed diagnosis; when a dentist fails to see an injury or dental problem and as a result of this the problem worsens. Another example is an incorrect diagnosis, which is when a dental practitioner fails to carry out work or they undertake work that results in you being in more pain.

Two other factors that could play a part in medical negligence are careless work and drug usage error. If a dentist carries out careless work it can cause personal injury and in a case of drug usage error a dentist may administer them incorrectly or fail to see if an allergic reaction occurred.

If you feel like you have been let down by the dental profession or you are suffering pain as a result of the treatment that you have received then you could be entitled to make a claim for compensation.

Florida Medical Malpractice Law

Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Simply put, medical malpractice is professional negligence (by a healthcare provider) that causes an injury. Broadly there are three areas where the medical practitioner can commit mistakes:

• Firstly, he may fail to diagnose or wrongly diagnose a medical condition in a patient.
• Secondly, if the diagnose is correct he may fail to provide correct treatment or therapy.
• Thirdly, he may altogether delay the treatment of the patient.

Collateral sources are payments received by the plaintiff in a personal injury case for compensation or benefits from a party not involved with the case to compensate for the damages the plaintiff in the .For medical malpractice cases in Florida, there is a necessary balance for payments from collateral sources, except for collateral sources for which there are subrogation rights.

A testifying expert must be from the same field of medicine as the defendant, or have been in practice for at least five years prior to the date the claim was filed.

The statute of limitations is a time limit set by law which creates a deadline for filing a lawsuit. If you file your suit after the deadline the suit will be thrown out. Medical malpractice actions must be commenced within 2 years from the date of the act giving rise to injury, or within two years from the date the injury was or should have been detected, but no malpractice action may be commenced more than four years following the act giving rise to the injury. These limitations apply to minors aged eight or older. For injuries to a child under the age of eight resulting from medical malpractice, under Florida law the child must file suit by his or her eighth birthday or within the standard limitations period outlined above, whichever time period is greater.

• Florida law requires informal discovery and investigation by the defendant's insurer before submission of a malpractice claim to the courts.
• Patients are entitled to see doctors' and hospitals' records of adverse medical incidents, including malpractice.
• The state is prohibited from licensing doctors who have committed three or more incidents of malpractice which involve a finding of medical malpractice by a court, administrative agency, or binding arbitration.

Medical malpractice law is a highly technical field of law.

Becoming involved in a lawsuit can be a significant event for anyone, including a physician. It can require a great deal of the physician's time and effort, can be emotionally draining, and can serve a psychological blow to the physician's professional psyche.

When legal claims arise, physicians must trust their lawyers to address them, just as patients must trust their physicians to treat disease. As with the physician-patient relationship, the effectiveness of the lawyer-client relationship depends on the physician's absolute candidness about the events surrounding the legal claim. These communications between lawyer and client are protected as confidential to encourage this necessary candidness. And, just as patient compliance promotes effective treatment, a physician must heed the lawyer's advice and instructions to ensure an effective defense.

This guide is designed to give physicians a context for understanding the impact of a legal claim so that, if a claim does arise, the physician can react appropriately and know what to expect. It focuses on the 3 phases of a legal claim: the presuit notice period, the life of a lawsuit, and trial. And, because legal claims invoke the issue of insurance, this guide initially attempts to familiarize physicians with the nature of a medical malpractice insurance policy.

THE MEDICAL MALPRACTICE INSURANCE POLICY

Duties of the carrier

Defense and indemnity. The carrier has 2 primary obligations under a medical malpractice policy: the duty to defend and the duty to indemnify. The duty to defend requires the carrier to retain a lawyer to defend legal claims that are brought against the physician. This duty also requires the carrier to pay expenses relating to the defense. The duty to indemnify requires the carrier to pay an amount up to the policy limits for a settlement or judgment on any covered claim against the physician.

Assignment of counsel. An insurance carrier will generally retain counsel for a physician when a lawsuit is filed, although some will do so early on when the notice letter is received. Typically, the carrier will assign a lawyer who has been approved to work on its cases, and a carrier will often honor a physician's request for a specific attorney. The carrier pays the fees of the lawyer it ultimately retains. While the physician may obtain a personal lawyer in addition to counsel retained by the carrier, the carrier will not pay those fees.

Consent to settle. Some insurance policies have a “consent clause” that requires the insurance carrier to obtain the physician's consent in order to settle a case. By giving consent, the physician places the power of decision regarding settlement in the hands of the insurance company. Settlements, like adverse judgments, are reported to the National Practitioner Data Bank.

Duties of the insured physician

Prompt notice. To preserve coverage, the policy typically requires insureds to provide the carrier with prompt notice of any potential claims or lawsuits against them. An insured physician's failure to provide prompt notice could jeopardize the carrier's obligations both to defend and to indemnify. As such, with respect to coverage, it is in a physician's best interest to provide prompt notice.

Cooperation. A policy also typically contains a “cooperation clause,” which requires insured physicians to cooperate in the defense of a legal claim.

PHASE ONE: THE PRESUIT NOTICE PERIOD

The presuit notice period is perhaps the most critical to understand because a physician usually receives notice of a claim and must react to it before having the benefit of a lawyer's guidance. Understanding the significance of this notice can enable a physician to respond protectively and avoid potentially harmful conduct.

The notice letter

The legal process typically begins when a physician is served with a notice letter. This is a letter from a plaintiff's attorney advising the physician of an intent to bring suit. Article 4590i, the Texas statute governing medical malpractice law, requires this notice in order to encourage presuit negotiations and settlement. Though required by law, the notice letter is not a lawsuit, is not filed with the court, and simply places physicians on notice of potential claims against them.

Immediate notice to the carrier

Upon receipt of a notice letter, the physician must immediately notify the insurance carrier and forward it any relevant papers. Immediate notification can operate to institute insurance coverage; delaying notification can jeopardize coverage.

A physician should also notify the carrier upon service or notice of anything resembling a legal claim, whether or not the physician has first received a notice letter. These items could include a citation, petition, discovery request, or deposition notice. The carrier is in a much better position than the physician to evaluate the effect of any material received.

A physician should also provide notice if contacted by a plaintiff's lawyer who is “generally considering” a claim or pursuing a claim against another health care provider. Physicians who try on their own to convince the plaintiff's lawyer they don't belong in a lawsuit can unwittingly cause adverse consequences and guarantee their own involvement in the lawsuit. Not only can the delayed notification damage the physician's position with respect to coverage, but it prevents the opportunity for an experienced professional, either an attorney or an insurance adjuster, to evaluate this initial contact and take steps to protect the physician's interest. If contacted, the best strategy is to refrain from discussing the case and immediately call the carrier.

The patient's chart

The next immediate step the physician must take after receiving a notice letter is to pull the patient's chart and place it somewhere safe. It is imperative that no changes, alterations, or deletions be made in the chart. If a lawsuit does develop, even the appearance that an alteration has been made can have a devastating impact. The chart must remain in exactly the same condition it was in before the physician had notice of the claim.

Discussing the claim

Upon receiving a notice letter, a physician may be tempted to discuss the claim with colleagues to obtain their opinions. However, if a lawsuit does develop, the physician would likely be required to recount those conversations—even those unfavorable to the physician's position. Physicians should discuss claims only with their insurance carrier and their lawyer.

Malpractice: What Is It?

The legal term of malpractice is often subject to numerous misunderstandings, and thus required to be explained in details so that the majority of people will be able to distinguish a malpractice case from other types of mistake case. Malpractice is pervasive and can affect anyone. Therefore it is essential to have a full understanding in order to know what to do in such case.

What is malpractice? In the field of law, malpractice refers to the situation when a professional is proved to have failed to use proper levels of care, skill or diligence in the performance of its professional activities causing harm to its patient or customers. Generally, a professional can be accused of malpractice if he fails to perform his or her professional duties in an assignment, such as an operation or simple check-up, he or she has accepted at the standard level of care, skill and learning normally that one can expect from the average careful renown member of the profession in the community. Behind this legal jargon, one has to understand that the performance of the professional will be compared to the performance standards of other professionals in the same field in the same geographic area. In brief, if the professional is performing poorer than his colleagues, he will be considered to have failed delivering a proper service and thus can be accused of malpractice. However, a patient or customer, who wants to take action against a professional, has to prove that he suffered an injury, a loss or a damage following the failure of the professional to perform properly his of duties. People entitled to benefit from or rely upon the professionals services can also take action against a professional.

Who can be accountable of malpractice? Often, malpractice is associated to medical wrongdoings. But any professional delivering services using specific skills and who is licensed or regulated by the state can commit malpractice. Therefore attorneys, accountants or surgeons can all be accused of a malpractice action. Other professional cannot be held for malpractice but for negligence.

Medical Malpractice Lawsuits

Unfortunately, medical malpractice happens everyday somewhere in the world. Everybody has the right to get the medical treatment that they need. No matter what your problem is, you should be able to walk into your local doctor's office, find the answers to your health concerns and receive the treatment that you require. You should be treated with respect and dignity and everything that you tell any medical professional should be kept confidential. However this is not always the case.

Sometimes medical professionals do not provide the appropriate treatment or they do not provide the sympathy that their patients deserve. Medical malpractice law states that all patients should be treated with respect and the appropriate treatment should be given as and when is needed. When things do not go as planned, that is when medical malpractice lawsuits are filed.

Understanding Medical Malpractice Lawsuits

If you have been unfairly treated or if your doctor has overlooked a simple problem, you can file medical malpractice lawsuits against them. Doctors train for years to be able to help people and members of the public rely upon them to do their job properly. A misdiagnoses can really affect a person's life and in some cases it can even be fatal. That is why medical malpractice law exists. It is there to protect members of the public and to ensure that they receive the right treatment as and when it is needed. I

f you have suffered from a misdiagnoses then you will need to find a medical malpractice lawyer. There are many lawyers who specialize in medical malpractice law and finding one should not be a problem. However, finding a good one may take some time.

Ideally when you look for medical malpractice attorneys, you will need to look into their qualifications. You want somebody who is passionate about what they do and who will help you to get the compensation that you deserve. In some cases no amount of money can help you to get over the poor judgment made by medical professionals; however by filing medical malpractice lawsuits, you can help to ensure that a wrong diagnosis is not given to other people in the future.

Try and make an appointment with a medical malpractice attorney wherever possible. This initial appointment gives you a chance to ask various questions in order to see if they are the best person to help you. Test their knowledge on medical malpractice law. Perhaps do a little research yourself beforehand so that you know whether they are telling you the truth. Of course you should book an appointment with more than one medical malpractice attorney if you are to get the best advice.

Overall the right medical malpractice lawyer will be able to help you to get justice for any wrongdoing you have been subjected to by a medical practitioner. Medical malpractice law is set up to protect you and there are hundreds of medical malpractice lawyers who are wiling to get you the help and the compensation that you deserve.