Discussion of Medical Malpractice
The following are general answers to some frequently asked questions about medical malpractice litigation. Click on a topic for information, or scroll down to view each in sequence. (See important note.)
Medical malpractice is the lack of reasonable care by a physician or other health care provider that results in injury to a patient. The Pattern Jury Charge read to every jury in a medical malpractice case states, “If a patient should sustain an injury while undergoing medical care and that injury results from the doctor’s lack of knowledge or ability, or from his failure to exercise reasonable care or to use his best judgment, then he is responsible for the injuries that are the result of his acts.”
Most cases are settled. They are rarely settled, however, at the early stages. Every case must be competently prepared as thoroughly as though it were going to go through a full trial. The insurance companies representing doctors long ago established the policy of not settling easily and making claimants prove their cases. Attorneys not familiar with the many special rules applicable to medical malpractice cases find themselves overwhelmed by special demands and motion practice. The insurance companies count upon a high success rate against attorneys who are unfamiliar with medical principals and practice.
Because of the extensive amount of work and the great expense of bringing medical malpractice lawsuits, generally only claims for permanent, disabling injury or death can be undertaken. These are the claims which merit the largest settlements.
It is the ethical obligation of every attorney representing plaintiffs to make full disclosure to the client of settlement discussions. No case can be settled by the attorney without the consent of the client.
The statute of limitations is the amount of time after an act that a claimant has under law to start an action. In New York State the statute of limitations is generally two and one half years from the last date of continuous treatment by the physician to be sued.
If the suit is for wrongful death the statute of limitations is generally two years from the date of death.
If the suit is against a municipality, a notice of claim must be filed within 90 days of the last date of continuous treatment.
Different periods of limitation apply to suits against the State of New York and the United States of America.
There are many rules that extend the statute of limitations. For example, if an object, not meant to be left in the patient’s body, is left behind in an operation, the time of the statute of limitations is calculated from the date that the foreign body is discovered.
Children generally have ten years to start an action.
The rules pertaining to statutes of limitation are the most perilous to claimants and the attorneys representing them. A statute of limitation missed by one day loses a case forever. Potential claimants should not delay in seeking the advice of an attorney specializing in medical malpractice.
Medical malpractice attorneys represent clients upon a contingent fee basis. This means that no fee is earned unless the attorney actually succeeds in obtaining a recovery for the client. The percentage of the attorney’s fee is set by statute in the State of New York. It is,
30% of the first $250,000
25% of the next $250,000
20% of the next $500,000
15% of the next $250,000
10% of all amounts over $1,250,000.
The attorney is permitted to apply to the court for a higher percentage if extraordinary work has been performed.
The client is usually expected to bear the initial cost of obtaining medical records and determining whether the claim is meritorious. This requirement is waived in special circumstances.
Extensive interviews are held with the client to obtain as much factual information as possible about the client and the events that constitute the medical malpractice. Authorizations for medical records are signed by the client. Relevant medical records are obtained. Frequently the client will be asked to obtain the medical records directly from the physicians or hospitals.
New York State Law requires that the attorney have the case reviewed by a physician knowledgeable in the area of medicine in question. The attorney must certify that he or she has conferred with a physician and on the basis of that conference the attorney believes there is a meritorious case.
The attorneys for the plaintiff-patient then prepare bills of particulars giving extensive information about the patient’s medical history, the treatment received and the damages suffered as a result of the medical malpractice. Bills of particulars are the foundation for the plaintiff’s proof throughout the rest of the lawsuit.
The plaintiff is asked to sign authorizations for the defendants’ attorneys to obtain all medical records of the patient and other records that might bear on the claims.
The court schedules a “Preliminary Conference” with the attorneys for all parties. At this conference the attorneys discuss the materials they have received from each other and request further authorizations, if necessary. The court then orders that “Depositions” of all parties be held.
At a deposition the party is questioned under oath by the opposing attorney. Depositions are both “fishing expeditions” where the opponent seeks to learn as much as possible about everything possibly or remotely relevant to the lawsuit and an attempt to gather material that will be used against the party at the trial. Claimants must be urged to be completely truthful as almost everything they say will be checked upon by investigators. Insurance companies frequently employ detectives to conduct surveillance and take videotapes of claimants they believe might be fraudulent.
At the depositions a stenographic record is made of the questions and answers. A transcript is prepared by the stenographer and forwarded to the person who was questioned to review and make corrections. Generally, the patient is questioned first and then the doctors. After all parties have been questioned, then non-party witnesses may be questioned.
When all discovery has been completed a further conference is held with the court and the case is certified as ready for trial. A “Note of Issue” is then filed, placing the case on the trial calendar.
The length of time it takes to bring a case from the initial evaluation to the trial calendar varies with the complexity of the case. Each of the above stages of the case can become protracted if there are multiple parties or if there is motion practice where court orders are sought for different relief.
Medical malpractice cases are given a “Special Preference” on the trial calendar. This means that they are placed ahead of all other actions. Depending on the county, the case may appear on the “Ready Day Calendar” of the court from three months to two years after a note of issue is filed.
Generally a case will appear on the calendar several times and be adjourned. The courts usually adjourn a case if any of the trial attorneys is engaged in another trial. When all attorneys signify that they are ready for a trial or the court feels that too many adjournments have been granted, the attorneys are directed to select a jury.
Juries in civil cases in New York are of six jurors. Usually two or three alternates are also selected in case jurors are lost during the trial. After a jury has been selected the case is assigned to a trial judge.
The trial judge usually holds a conference with the attorneys and attempts to obtain a settlement of the case. If it cannot be settled the trial commences.
The trial starts with a “Charge” by the judge in which the judge informs the jury of the basic structure of the trial and identifies the parties. This is followed by opening statements by the attorneys.
The attorney for the patient gives the first opening statement stating what the patient’s contentions are and what is expected to be proved. Each defendant’s attorney then makes a statement of what that defendant’s contentions are.
The plaintiff then presents witnesses. Usually the patient and members of the patient’s family will testify. In medical malpractice cases the plaintiff’s attorney frequently serves subpoenas on the defendant doctors and calls them as witnesses on the plaintiff’s case. The patient will then present an “Expert Medical Witness.” This is a physician who has reviewed the facts of the case who will explain the medical questions to the jury and state what the standards or medical practice are and explain in what manner the doctors or hospital defendants violated the standards. A medical malpractice case cannot be proved without expert medical witnesses.
After the plaintiff has presented all of its witnesses, the defendants then present their witnesses to the facts of the case and expert medical witnesses.
When all witnesses have been presented by both sides, summations are held. Summations are closing arguments in which the attorneys discuss the evidence that has been presented and present their arguments about why they should win the case.
The defendants’ attorneys give their arguments first, followed by the plaintiff’s attorney.
After all attorneys have given their closing arguments the judge gives the final charge in which all the law pertaining to the case is explained to the jury. The jury is then given a set of questions to answer and direct to retire to deliberate and reach a decision.
The jury in a medical malpractice case is asked questions about both liability— whether the defendants failed to give the patient reasonable care, proximate cause— did the failure to provide reasonable care injure the patient and damages— the amounts of money awarded to the patient if reasonable care was not rendered.
The jury is asked to calculate amounts awarded to the plaintiff for pain and suffering from the date of the malpractice to the date of the verdict, for pain and suffering for the future, for lost income to the date of the verdict and for lost income in the future. If the patient was married the jury is also asked to award damages to the spouse of the patient for past and future lost services and consortium. If the suit is for a death, the jury is asked to evaluate the pain and suffering of the person who died as well as the economic loss to the family caused by the death. Five out of the six jurors must agree upon each part of the verdict.
If the patient wins the lawsuit, the attorneys for the doctors and hospitals routinely ask the court to dismiss the verdict as unreasonable and excessive in amount.
The winning party prepares a “Judgment,” the official paper stating the amount that the jury has awarded.
The losing party may then appeal the judgment to a higher court.
If the losing party chooses to appeal, it must file a notice of appeal within thirty days after it has received the judgment. It then has six to nine months to have the record of the trial printed up and to prepare a legal argument claiming that somehow the trial was unfair. Appellate courts take several months to make decisions on appeals. During the time from the verdict by the jury until the judgment is finally collected the amount of the verdict earns interest at 9%.
These statements are not intended as legal advice, which should only be received from an attorney after a thorough and extensive discussion of all the facts involved. There are as many exceptions as there are rules. It is therefore necessary to have an attorney make a definitive determination regarding each case.