The question we ask you is, what do you want to do?
If you would like to speak with your doctor or the hospital about your concerns, call or write to make an appointment. They may not meet with you directly, but may instead have you meet with someone else like a patient representative or other staff person. If this is not acceptable to you, speak up!
When you meet, know what it is you want and why you are meeting. Do you want answers? Do you want an apology?
If you want something explained about your care, that may be in your records, be sure to have the information available and your questions or concerns ready.
If you are still not satisfied, some of the places you may want to contact to file a complaint are:
NY State Department of Health Hospital Complaint Hotline 1(800) 804-5447.
If the facility is Joint Commission Accredited, call 1(800) 994-6610
NY State Department of Health Office of Professional Medical Conduct 1(800) 663-6114
An attorney handling a medical malpractice case on behalf of an injured or deceased victim of medical error faces countless obstacles. It is neither uncomplicated nor inexpensive to handle a medical malpractice matter from the plaintiff’s side. Some of the greatest hurdles are encountered at the very beginning of a case. Unfortunately, these obstacles prevent thousands of malpractice victims from getting to the courthouse steps in the first place.
Unbeknownst to most, a plaintiff’s attorney, on his or her own, is not permitted to simply file a lawsuit on behalf of an alleged malpractice victim. Rather, pursuant to New York State Civil Practice Laws and Rules (§3012-a), all actions claiming medical, dental or podiatric malpractice must be accompanied by a “Certificate of Merit”. In this “Certificate of Merit” the attorney must declare, under penalties of perjury that the attorney reviewed the facts of the case and consulted with at least one physician (dentist or podiatrist – depending on the action) who is licensed to practice and who concluded that there is a reasonable basis for the commencement of the action. Accordingly, prior to commencing an action an attorney must (a) retain the services of an expert physician who is knowledgeable in the particular medical specialty in question; (b) have a consultation with at physician; (c) secure a definitive opinion from the physician that there is reasonable basis for the commencement of a malpractice action against each and every potential defendant.
This “Certificate of Merit” requirement brings up many complications for the plaintiff’s attorneys. First, many physicians are unwilling to meet with a plaintiff’s attorney due to pressure from colleagues, hospitals, insurance companies and medical societies. Second, once a physician is willing to meet with the plaintiff’s attorney the physician must be paid for his or her time and expense. This often costs anywhere from $1,500.00 to $5,000.00 – the cost for a simple anonymous opinion. Thus, prior to knowing if there is a viable case or not the plaintiff’s attorney is required to expend substantial amounts of money with the possibility of never being reimbursed. These expenses prevent attorneys from reviewing many cases where the resulting damages would likely not result in a substantial award. Third, even if a physician is willing to meet and certify that a case is meritorious, many physicians are unwilling to appear as an expert at time of trial due to the aforementioned pressure from colleagues, etc. – often leaving the plaintiff having to find yet another expert or left without necessary expert testimony at trial (under prevailing New York Law a medical malpractice action is dismissible at trial without expert testimony to support plaintiff’s allegations).
Thus, contrary to popular belief, a lawyer is NOT permitted to start a medical malpractice action without the “go-ahead” from a physician. In any other type of negligence action, including legal malpractice, accounting malpractice and architectural malpractice, the attorney is permitted to simply file an action. That is, no such “Certificate of Merit” is required (one example of the preferential treatment given to physicians under New York Law). Therefore, in medical malpractice litigation it is the opinion of a physician which is controlling NOT the opinion of the lawyer.
Another hurdle facing plaintiff’s lawyers is the statute of limitations. In any other negligence action, including legal malpractice, accounting malpractice and architectural malpractice, in New York State a lawsuit must be filed within three years. However, as a direct result of the intense efforts of the medical lobby, the statute of limitations for medical malpractice against a physician is two and one half years. This is yet another example of the preferential treatment physicians are given under New York Law. Even worse, in order to sue a hospital which is owned and operated by a municipality, a Notice of Claim must be filed within ninety days of the malpractice and suit must be filed within one year and ninety days from the malpractice. Consequently, many attorneys may refuse to accept an otherwise winnable medical malpractice case due to these shortened limitations periods.
Yet another obstacle faced by the plaintiff’s attorney in a medical malpractice action is the colossal expenses involved with medical malpractice litigation. Court fees, service fees, expert fees, record fees, deposition fees, appeal expenses and others often exceed ten thousand dollars in even the simplest of cases. When a case is brought to trial these expenses sometimes double due to astronomical medical expert (physician) testimony fees. Customarily, the plaintiff’s attorney fronts these huge expenses in the hopes of being reimbursed upon the successful resolution of the case. Should the case be lost, often times the plaintiff’s attorney is left to absorb the expenses.
Another impediment faced by the malpractice victim’s attorney is the attorney’s fee. Negligence actions are often handled by plaintiff’s attorneys by way of a contingency fee agreement. This agreement states, in essence, that if the plaintiff is successful in his or her action (settlement or verdict), the plaintiff’s attorney shall take a fixed percentage of the amount recovered. If, however, the case is lost, then the plaintiff’s attorney is left with no legal fee at all. This means that plaintiff’s attorneys can work for several years on a case and never be paid for the work. The contingency fee agreement allows victims to prosecute their actions where the victim cannot afford to pay a lawyer an hourly billable rate. Once again, in any other negligence action, including legal malpractice, accounting malpractice and architectural malpractice, a plaintiff’s attorney is entitled to a one-third portion of the amount recovered. However, as a direct result of the intense efforts of the medical lobby, in a medical malpractice case the plaintiff’s attorney must abide by the legislatively mandated “Sliding Scale Retainer” (yet another example of the preferential treatment physicians are given under New York Law).
This “Sliding Scale” mandates that lawyers accept 30% of the first $250,000 recovered, 25% of the next $250,000 recovered and so on. Thus, as the amount recovered goes up, the attorney’s fee goes down. While on its face this mandate appears to help the malpractice victim (more money goes to the injured malpractice victim and less to the attorney), the “Sliding Scale” actually prevents attorneys from accepting cases with smaller damages because, after deducting expenses, the lawyer will end up with a small legal fee after years of work.
Consequently, when the medial and insurance lobby argues that plaintiff’s lawyers are receiving the “bulk” of the malpractice settlement funds they should be reminded that (a) in medical malpractice cases plaintiff’s lawyers get far less than in any other negligence case; (b) that plaintiff’s attorneys work years on cases without any pay; (c) that plaintiff’s attorneys are working for years on a case which may possibly be lost at trial – leaving the attorney with no legal fee; and (d) the contingency legal fee agreement turns out to be far less money going to the attorney than if the attorney had charged the client an hourly billing rate (as physician/insurance company lawyers charge their clients).
The final hurdle faced by the victims of malpractice and their attorneys is the burden of proof. The victims of malpractice bear the burden of proving based upon the preponderance of the credible evidence that the physician departed from generally accepted and prevailing medical standards in the treatment of the plaintiff and that this departure caused the plaintiff to suffer harm. In defending himself the physician need not prove anything. Rather, it is completely the plaintiff’s responsibility to prove his case. Otherwise the case will be dismissed by the Court. This burden is not an easy one to overcome. Jurors are charged on the difference between medical malpractice (where damages are recoverable) and physician’s mistake in judgment (where damages are not recoverable). Overcoming the burden requires massive amounts of evidence supported by credible expert testimony. Moreover, it requires getting past the skeptical eyes of the jurors who question the plaintiff’s motives for suing in the first place. In fact, in New York State physicians and hospitals win the vast majority of medical malpractice cases filed.
In sum, a victim of medical malpractice cannot simply start an action against a physician or hospital without overcoming numerous obstacles. These obstacles are difficult to overcome in even the most egregious cases of malpractice. Malpractice victims who overcome these hurdles are sometimes left with little or no recourse due to limited physician insurance policies or judgment proof physicians. Without the help of plaintiff’s attorneys willing to front all expenses and to work tirelessly for years without pay – with the possibility of never being paid or reimbursed – malpractice victims would be hard-pressed to find justice in today’s doctor friendly environment.
