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A Medical Malpractice Victim's Guide to Compensation in New York...Part 1

By Gerry Oginski

Medical malpractice can cause significant and permanent injuries. Our society recognizes the right to obtain compensation if we are harmed by someone else, whether through an accident or by medical negligence. Negligence is typically defined as someone who is careless. In a medical malpractice case, negligence is defined as being a departure from good and accepted medical care. In an accident case, negligence is really someone's carelessness that caused harm.

Compensation is defined as the right to be paid for something that is owed. It's not a handout. It's not a give-away. It's not a winning lottery ticket, or a slot-machine jackpot. Accountability is the obligation to account for one's actions. Most people will agree that each person should be held accountable for their actions. In our society of justice, if a wrongdoer is not held accountable for their actions, there is a good chance that person will do that wrongdoing again and again. If we are a society of people who require that individuals take responsibility for their actions, then a wrongdoer is responsible not just for the happening of an accident, but also the injuries that arise from that accident. That's what compensation is about.

How does an injured medical malpractice victim get compensated for their injuries?

1. The injured victim and their family needs to meet with an experienced medical malpractice lawyer- someone who has handled cases like yours. The attorney will obtain your medical records from the doctors and hospitals who treated you.
Once all records are obtained, your lawyer will send your records out to a medical expert, usually someone who has the same specialty as the doctor who you believe caused you harm.

Only after confirming that there were (1) Departures from good medical care, and (2) That those departures were substantial causes of your injuries, and (3) That your injuries are significant or permanent, can a lawsuit be started on your behalf.

2. Compensation comes in one of two forms:

(1) A settlement, or
(2) A verdict

A settlement is a guaranteed amount that a doctor, hospital or their insurance company has agreed to pay to resolve your case. In order to make your settlement valid, there are specific ways in the State of New York to do this. The most important one is to have the settlement done in 'open Court', and place the settlement details 'on the record' with a court reporter. If the settlement agreement is not done in Court, and is done by letter between the attorneys, there must be specific details about the agreement in order to make it binding.

There was a recent case in New York where a lawsuit was brought by a malpractice victim and both sides eventually agreed to settle the case. The terms of the agreement were made and confirmed by letter to the defense attorney. Before the settlement could be processed by the insurance company, the victim died, and the insurance company tried to get out of the deal by claiming that there was no binding agreement to begin with. Unfortunately for the victims' family, a New York appeals Court agreed with the insurance company and held that since there was no valid binding settlement agreement while the victim was alive, there was no binding settlement once he died.

Needless to say, I'm sure the victim's family brought a legal malpractice lawsuit against their attorney.

Join me for the conclusion of this article titled "A MEDICAL MALPRACTICE VICTIM'S GUIDE TO COMPENSATION IN NEW YORK...Part 2"

Full post as published by New York Medical Malpractice Blog on November 15, 2007 (boomark / email).