Medical Malpractice

Medical malpractice is the negligence of a doctor, nurse or medical provider. For example medical negligence is the doctor's deviation or departure from accepted standards under the circumstances. Negligence is the doctor's failure to use reasonable care under the circumstances that a reasonably prudent doctor would not do under the circumstances, or failing to do something that a reasonably prudent doctor would do under the circumstances.

Your doctor is obligated to have that reasonable degree of knowledge and skill that is expected of an average doctor who provides the particular medical service in the medical community in which the doctor practices. Your doctor is not required to have extraordinary skill which is only possessed by a few exceptional doctors. All your doctor is required to do is keep reasonably informed of new developments in his particular specialty in the medical field and to practice pursuant to the approved methods and means of treatment in general use.

In order to have a jury find your doctor liable for medical malpractice we must prove two things:

• First, that your doctor deviated or departed from accepted practice; and
• Second, that such departure was a proximate cause of injury or damage.

When must you start an action for medical malpractice?
According to New York Civil Practice Law and Rules section 214-a an action for medical malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.

If your cause of action is based upon the discovery of a foreign object in your body, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.

What is the significance of "continuous treatment" doctrine in your medical malpractice case?
New York Civil Practice Law and Rules section 214-a provides that a medical malpractice action must be commenced within 2 1/2 years from the date of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to said act, omission or failure.

The "continuous treatment" doctrine applies a toll to the statute of limitation. This is important in determining whether a lawsuit is commenced within the 2 ½ year period or if a municipality is involved whether a notice of claim was filed within the 90 day period after the claim arise. Under the "continuous treatment doctrine" a Statute of Limitations or a notice of claim period does not begin to run until the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.

Treatment does not necessarily terminate upon your last visit if further care or monitoring of your condition is explicitly anticipated by you and your physician which may be evidenced by a scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized your treatment history.

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If you or a loved one have been injured as a result of the negligence of a doctor, nurse or hospital you must take immediate action to protect your legal rights. Call us now at (718) 671-0900 for a free confidential consultation.