MEDICAL MALPRACTICE FAQ

1. What is medical or dental malpractice?

An action for medical malpractice is an action alleging negligent infliction of personal injury or wrongful death in the course of medical or dental treatment by someone professing to have specialized knowledge and skill in the practice of medicine. Plaintiffs alleging medical or dental malpractice must establish the physician’s or dentist’s duty regarding treatment, breach of that duty, and that the breach of the duty of care caused damages to the plaintiff.

2. When does a medical or dental malpractice lawsuit have to be filed in the State of New York?

The statute of limitations for medical or dental malpractice cases is 2 ½ years. N.Y.C.P.L.R. § 214-a: An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of . . . The statute of limitations for negligence causing a wrongful death, whether by medical malpractice or otherwise: is two years. N.Y. Est. Powers & Trust Law § 5-4.1(1): [S]uch an action must be commenced within two years after the decedent’s death.

3. How is the legal fee calculated in a medical or dental malpractice case?

  • 30% of the first $250,000 of the sum recovered;
  • 25% of the next $250,000 of the sum recovered;
  • 20% of the next $500,000 of the sum recovered;
  • 15% of the next $250,000 of the sum recovered;
  • 10% of any amount over 1,250,000 of the sum recovered.

What does a plaintiff have to prove after filing a medical or dental malpractice case?

Plaintiff has to prove that the physician or dentist departed from the standard of care or from good, sound medical or dental practice.

How is the standard of care defined?

A physician or dentist exposes himself to liability if he chooses a treatment which is not accepted in the medical or dental profession. The physician or dentist must examine the patient, take his history and review test results because the specific circumstances of a patients case may affect the choice of treatment.

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