Lance Ehrenberg, Esq, and Lawrence M. Karam discuss the best time to file a medical malpractice lawsuit.

When Should You File a Medical Malpractice Lawsuit?

An unpleasant or tragic outcome in a medical case does not necessarily mean that the outcome was because of medical malpractice. A plaintiff must prove several legal elements to recover compensation for malpractice. If you are unsure whether or not you need to file a medical malpractice lawsuit, a New York medical malpractice attorney can help you evaluate your case and review your options.

What are the Legal Elements of a Medical Malpractice Claim in New York?

Typically, there are four elements you must prove to win a medical malpractice lawsuit in New York. Those elements are:

  • Duty of Care — You must establish that the doctor owed you a duty of care. Establishing that you had a doctor-patient relationship meets the requirement to establish the duty of care. Once a patient is under the care of a medical provider, the provider owes the patient a duty of care. Asking a doctor a question at a dinner party probably would not qualify to establish a duty of care because you are not the doctor’s patient.
  • Breach of Duty — The second element requires you to prove that the medical provider breached the duty of care. In most cases, this element involves obtaining testimony from other medical professionals or experts to determine what a reasonable medical provider would have done in a similar situation. After you establish the standard of care, you must prove that your medical provider failed to meet the standard of care accepted within the medical community.
  • Causation — The third element is causation. You must prove that the breach of duty caused the injury. In other words, your injury resulted because of the inactions or actions of the medical provider.
  • Damages — The final element requires you to prove that you suffered damages as a result of the breach. Damages include physical and financial damages.

In most cases, the testimony to satisfy the second element is obtained from an expert within the same field as your physician. The expert testifies how the doctor should have handled the matter and how the failure to act in that manner caused your injury. The other side presents expert testimony to contradict your experts. Many cases hinge on which side has the best medical experts, but other evidence can also be a significant factor in the jury’s final decision. Your New York medical malpractice attorney will locate expert witnesses to provide testimony in your case.

The Time to File a Medical Malpractice Lawsuit is Limited

Most medical malpractice claims are settled without going to court. However, your time to file a lawsuit is limited. For most medical malpractice claims, you must file a lawsuit within 2½ years from the date of the alleged malpractice and in some cases 21/2 years starting on the last visit with the doctor who committed the malpractice. While there may be a few exceptions to this general rule for patients who are minors or patients who may not have discovered [in limited circumstances] the malpractice right away, it is best to see an attorney as soon as possible to protect your right to hold a medical provider liable for negligence or wrongdoing.

Contact a New York Medical Malpractice Attorney to Discuss Your Case

It can be difficult to know whether you should file a medical malpractice lawsuit. Contact our New York medical malpractice attorneys today to discuss your case. An experienced New York medical malpractice attorney can provide an analysis of your case so that you can make an informed decision on how to proceed.

About the Author
Of all the different areas in medical malpractice, it is podiatry malpractice that has had a particular interest to me. With 42 years practicing law and representing hundreds of victims of malpractice, I have created a law practice in which my clients are comfortable knowing that their case is being handled with my personal attention, in the most professional manner, and without unreasonable delays.