Frequently Asked Questions (FAQ's)
What is medical malpractice?
Simply put, medical malpractice is medical negligence or professional negligence of a doctor or hospital. It is the failure to use reasonable care under the circumstances or doing something that a reasonably prudent doctor would not do or failing to do something that he would do. This definition applies to nurses, interns, residents, and most healthcare professionals.
There are many other nuances pertaining to each fact pattern, as well as exceptions and allowances under the law.
Do I have a case of medical malpractice?
Assuming that one does have a technical claim for medical malpractice, there are other factors that are just as important. Can the case be proved by an expert? Is the expert capable of presenting your side? Do you need additional experts? Are they exceptions to the claim? Do the medical doctor and/or hospital records support the claim?
Is the claim financially practical?
These all fall into the category of the lawyerâ€™s initial evaluation into whether the firm will accept the case moving forward. Given that these cases are traditionally costly and time-consuming, the initial evaluation generally takes a great deal of timeâ€¦and money. The attorney must offer the client a straight, no-bars held explanation about the potential claim so that there are no exaggerated expectations.
How much time do I have to sue for medical malpractice?
The amount of time a person has to start a lawsuit is called the Statute of Limitations. To start a lawsuit, papers have to be filed in a courthouse and then delivered to the people named as defendants in the lawsuit. This legal time period differs from state to state. In New York State, generally, against a privileged doctor or hospital, a patient has 2 1/2 years from the date of the last negligent event. In New York State, if the medical malpractice/negligence occurred at a municipal hospital, there are very strict periods much shorter in length. A Notice of Claim has to be filed with the municipality within 90 days of an event and a lawsuit must be started within one year and 90 days. At a hospital operated by the State of New York, a Notice of Intention to File Claim must be made within 90 days of the event. There are specific tolls for lawsuits involving children, mental disability, and continuous treatment.
How long does a medical malpractice case take to resolve?
There is no exact answer to this question since all cases are different. Most cases take between 24 to 36 months to resolve with some a lot longer and some a lot shorter. Given the current COVID situation, this time period will certainly vary but vary towards the longer time frame.
What does it cost to hire an experienced medical malpractice lawyer?
An initial consultation with medical malpractice lawyers in the State of New York is generally conducted without a fee. Investigation of the matter after the initial consultation is conducted without an hourly charge. A lawyer in medical negligence generally works on the basis of a contingency fee. A contingency fee is authorized by law and has long been recognized as a fundamental way to provide access to the judicial system.
Very few persons have the financial strength to pay hourly fees for legal representation and medical malpractice. Hospitals themselves have great financial resources to fight a patientâ€™s meritorious claim, making the patientâ€™s exercise of his or her rights very costly. Experienced law firms in medical malpractice/negligence have the financial strength to fight the insurance and medical industry's resistance.
Instead of an up-front fee, the attorney will be paid a percentage of the recovery. In the State of New York that percentage of recovery is 30% of the first $250,000 recovered, 25% of the next $250,000 recovered, 20% of the next $500,000 recovered, 15% of the next $250,000 recovered, and 10% of any amounts recovered in excess of $1,250,000. For exceptional cases and representation, counsel may request the court for an upwards fee. This is generally done with the clientâ€™s approval.
If I bring a medical malpractice / negligence lawsuit do I have to go to court?
Yes, although settlements in meritorious cases are frequent, settlements usually take place only after all discovery has been completed. Many times, settlements are not offered until â€œhalf-dayâ€ through trial.
At the time of trial, it is generally thought necessary that the person who brings the lawsuit be present in Court as often as possible. This could range anywhere from a couple of days to a week or longer.
Will the lawsuit that I bring affect my access to medical treatment?
No. Although doctors are sometimes reluctant to speak out against another colleague, they rarely allow a lawsuit to interfere with their care and treatment of a patient. Over the years, our clients have experienced a very high standard of medical treatment from other doctors during the tendency of their lawsuit. They have found that doctors and hospitals are not concerned with any legal proceeding. However, patients should not rely on or anticipate that any other doctor who treats them will help them at trial.
Why should I choose Michael A. Santo, P.C. as my counsel?
Mr. Santo has 38 years of experience in this field. He was counsel at two of the most premminent plaintiffsâ€™ counsels for more than 25 years as trial counsel in the field of personal injury and medical malpractice.
When he decided to change his â€œbusiness modelâ€ and work as a consultant, he decided to confer with Silberstein, Awad & Miklos, P.C. (SAM) on those cases which were better suited for a large, sophisticated law firm so that potential clients could benefit from a financially well-heeled firm capable of handling these claims.
Mr. Santo is â€œof counselâ€ to SAM and has been for close to 4 years. Together, Mr. Santo and SAM work tirelessly together to evaluate the clientâ€™s potential claim and then decide on the strategy moving forward. Once the case is accepted, the case is handled by the SAM â€œteam approachâ€ and prosecuted with zeal, energy, and professionalism.
There is NO additional fee and the clients receive the benefit of an additional voice on their behalf.
SAM has been an established law firm for almost 40 years. They have experience in all Courts in the prosecution of medical malpractice cases. In addition to being able to effectively negotiate a settlement, SAM is also capable and well experienced in conducting appellate practice before the Appellate Courts.
SAM has been involved in historic, precedent-setting cases involving some of the largest recoveries in the State of New York. In fact, we represent Brooklyn, Bronx, Queens, Nassau County, and the Suffolk County areas.
SAMâ€™s malpractice attorneys aim to provide friendly and compassionate service to our clients.
What is a personal injury?
A personal injury is a physical, mental or emotional injury to a person as a result of another partyâ€™s negligence, such as these examples:
- Vehicle accidents
- Slip and fall accidents
- Long term care facility abuse
- Dog bites
- Product liability
- Work-related accidents
- Elevator accidents
- Municipal liability
- Road design
- Police abuse
- Malicious prosecution
- Negligent parks maintenance and/or design
- Sexual abuse
- Nursing home negligence
- Visiting nurse negligence
What types of compensation do I qualify for?
The legal and theoretical purpose of compensation is to make a party, who has been wronged, â€œwholeâ€ again. There are several types of compensation that you may be entitled to, including the following:
- Medical expenses
- Lost wages Pain and suffering
- Physical disability
- Emotional and mental suffering
- Punitive damages
- Mental disability
- Damage to property
How do I know if I have a legally valid personal injury claim?
There are situations where this question is easy to decide (hit in the rear auto accident), but, if you can show that your injury was the result of someone elseâ€™s negligence, then you most likely have a valid claim.
Many personal injury claims are complicated, so it is best to retain an experienced attorney who can help you immediately after you receive your injury. Mr. Santo has practiced exclusively in this field for 38 years, handling the simplest fact scenarios to the most complicated. Even the â€œsimplestâ€ cases can present complicated â€œmedicalâ€ claims. Bottom line: hire an experienced attorney to evaluate your case.
In addition to viewing the other FAQ sites, keep in mind that there are many injured parties who have failed to inquire of an experienced lawyer whether or not under any given fact situation they have a potential claim.
Often times, the most grievous injuries are caused by the negligence of an individual and/or entity is not clear. Experience counts. It is best to inquire, find out the answer and act accordingly. Mr. Santo provides free consultations.
If the lawyer doesnâ€™t know the answer, the response should be, â€œIâ€™ll find out.â€ This sometimes takes the intervention of an expert review. The lawyer and expert work together to find a solution for you, even if there is a negative answer. Youâ€™re entitled to PEACE OF MIND.
What is the Scaffold Law and how does it affect safety at construction sites in New York?
New York State provides laws that meant to protect construction workers in certain situations. If and when the fact pattern falls under these laws, the applicable sections are applied to the claim and evaluated by the parties and courts accordingly.
New York State Labor Law Section 240, the â€œScaffold Lawâ€, requires building owners and general contractors to provide workers proper scaffolds, hoists, harnesses, and other appropriate work site safety and equipment. If a construction worker is injured because the owner or general contractor failed to provide safety equipment, then the owner or contractor can be held responsible.
How does the Scaffold Law make New York different from other states?
The New York State legislators have fairly and consistently investigated the construction industry in order to offer the best protection and safety standards possible, making New York Stateâ€™s legitimate construction industry is virtually the safest in the nation. This is in large part to the Scaffold Law and other safe construction work site state laws: Labor Law sections 200 and 241.
According to statistics compiled by the United States Department of Labor, New York State consistently ranks as the second lowest rate of construction injury among the fifty states.
As a result, construction workers are afforded legal safety protection from actions and inactions of not only their employers, but subcontractors and owners during certain construction situations. When these laws are violated and there is ample evidence, knowledgeable counsel can properly bring suit on behalf of these injured workers.
The laws not only act to protect workers, but they also make the construction sites safe and, therefore, offer lower insurance rates for construction concerns.
What is OSHAâ€™s role?
The United States Occupational Safety and Health Administration continually monitors, studies and evaluates the construction industry and all trades associated with general construction. Based on their work, they have been able to identify the more common safety issues and, therefore, address them in order to prevent them from reoccurring.
Do the New York State Labor Law construction site safety sections apply to all work sites?
No. The laws only apply to fact-specific situations. For example, the Scaffold Law specifically does not apply to owners of one- or two-family dwellings. The other sections (200, 241) of the Labor Law apply only if the owner actually controls or supervises the construction.
How do the New York State Labor Laws regarding construction sites promote worker safety?
Without the laws mentioned above, more building owners and contractors in the highly competitive construction industry would cut corners on safety. This, in fact, still remains the most common motive, if you will, for employers and other construction concerns to save money. When money is placed over safety, people get hurt.
The owner who signs the construction contract and makes the payment can and should insist on full compliance with all safety standards. By making building owners and general contractors responsible for work site safety, the noted laws can effectively ensure that workers will be safe and secure. These laws also deter owners and general contractors from hiring subcontractors who have poor safety records.
What are the damages that a construction worker can sue for under the New York State law?
The damages include loss of earnings, medical expenses, rehabilitative expenses, compensation for the pain inflicted, compensation for permanent disability, and more.
Does Workersâ€™ Compensation come into play?
Workersâ€™ Compensation is provided through the employerâ€™s insurance company, allowing for immediate coverage of medical and hospital expenses. Workersâ€™ compensation money received by the injured worker must be paid back to the insurance company when there is a recovery in a personal injury lawsuit.
In effect, whatever is genuinely paid out by compensation becomes a LIEN with a certain formula applied at the end of the case. The LIEN is paid from the clientâ€™s proceeds, noting that one can not â€œdouble dipâ€ on a claim. The art of dealing with the liens is critical to the financial results of the client.
What qualifications should an injured person look for in a lawyer to represent them in a construction site injury?
The most important qualification is experience. An experienced lawyerâ€™s knowledge and wisdom from other cases can always make a big impact in the results of a case. Integrity, trust and concern are also qualities that clients need from their injury attorney.
Construction claims often times get complicated. There can be multiple defendants at the early stages, and, upon full discovery by depositions and the exchange of documents, some of those defendants can be let out of the suit, dismissed upon motion, or other defendants added based on new evidence. These cases often times involve motions and appeals, so knowledgeable counsel is critical.
How are construction injury lawyers compensated?
Generally, lawyers representing injured construction workers operate on a contingency fee basis. This means that the client is not billed by the hour and only pays a legal fee if the lawyer obtains a recovery.
Can I sue if I am not a citizen or I am an undocumented worker? What happens if I was paid off the books?
Citizenship or legal status is of no importance in bringing a lawsuit. Anyone and everyone can bring a lawsuit if they are hurt on the job. You can even bring a lawsuit if you are paid off the books. Being off the books may affect how much money you can recover for lost wages, but this depends on the circumstances of your case.
What should I do right after a car accident?
It is important to remain calm and pull off to the side of the road in a safe position. Call the police and obtain their and the other driverâ€™s information.
From a claim standpoint, do the following;
- Write down the police officerâ€™s name and the accident report number and witness information.
- Obtain and record the other driverâ€™s name, address and insurance policy information.
- If you have to be removed from the scene by ambulance, your health and well being takes precedence and the above will fall into play eventually.
- Once settled,
- Take photos of the damage to your car
- Report the accident to your insurance company
- If injured, call and obtain a NO FAULT insurance application; fill it out with the advice of your counsel.
- Go to the appropriate doctor and make sure in advance that the office accepts your no-fault coverage. This coverage includes payment to all of your medical treaters, as well as reimbursement, to the extent allowed, for your loss wages.
Should I take pictures of the accident scene and the cars?
Yes! When it is safe and only when it is safe to do so, take photos and videos of the scene and damages to the vehicles involved. Remember, these photos can and will be used as evidence later on. It is important to properly photo and record this and any other unusual and critical information to help your lawyer help you in this potential claim.
What if I am involved in a hit-and-run, and donâ€™t know who was driving or the license plate number?
This happens on occasion and it is important that you try to identify the vehicle as best you can by taking photos/videos, if possible. Always provide what you can to the police so they can conduct a meaningful investigation.
Note that if the vehicle and drive can not be located, it is important that your record and photograph the points of contact to your vehicle. A claim can still be made under your UNDER/UN-INSURANCE provisions of your own policy. More about that below.
What is New Yorkâ€™s no-fault law?
If you are involved in a car accident, you should know what is covered by New Yorkâ€™s no-fault law. If you have insured your car, then you are entitled to have your medical bills, lost wages, and any other medically necessary expenses paid â€“ regardless of who is at fault.
New York has mandatory minimum insurance requirements. That coverage includes $50,000 in no-fault personal injury protection for every person in your car who is injured. Accordingly, there is $50,000 available to pay lost wages, medical bills, and other medically necessary expenses. Lost wages under the minimum policy are paid at 80% of your gross wages, up to a maximum of $2,000 per month.
The no-fault insurance company must be placed on written notice within 30 days of the accident or your right to no-fault protection is waived. There are limited exceptions to this rule, but it is important that you seek medical care right away and file the appropriate no-fault application immediately after the accident.
What can I do if the person who crashed into me has no car insurance?
In New York there are two manners in which to recover damages if you are involved in an accident with a car that does not have insurance.
First if your car is insured, then there is mandatory UN/UNDERINSURANCE coverage for $25,000 per person with a total of $50,000 for all people injured in your car.
Second, if your car had no car insurance and there is no car insurance in your household, then New York State provides for uninsured motorist coverage in the amount $25,000.
As a precaution, you should review your auto policy with an expert insurance agent or a knowledgeable attorney to understand the coverage you purchased and what coverage you could potential have and do not. The UM coverage is there for you. The policy provisions are there in the event the culpable party has no (UNINSURANCE) or inadequate insurance (UNDERINSURNACE). Note that you can purchase an UM provision equal to your liability policy provisions. If you do wind up having to use these provisions, the claim is an administrative claim against your own insurance company, who then stands in the position of the culpable party. The claim is presented under ARBITRATION proceedings, not in the courts. The result is meant to be the same.
How much time do I have to sue for a car accident?
The general rule in New York is that a lawsuit must be started within 3 years of the date of the accident. The exception to the rule is children who are under the age of 18. Children have 3 years from their 18th birthday to bring a lawsuit.
Can I recover damages if the accident aggravated/exacerbated a prior injury?
If you injured a body part in an accident that was previously injured, you can still recover damages for the aggravation or exacerbation of the previous injury. You must inform your attorneys of the previously injured body parts so they have an opportunity to compare and differentiate between your previous injuries and your current injuries. Your attorneys will obtain your medical records for both your previous and current injuries, speak with your doctors, and consult with you to determine what may be compensable. Factors such as the specific location of an injury within a joint or your spine, the type of pain you feel, and the severity of the pain will assist us in securing a recovery.
Will my case go to trial?
Generally, auto claims are settled at a very high rate, either by agreement, mediation, arbitration, or trial (See below).
While most cases settle, they do so because of PREPARATION. When your lawyer and you work together to obtain all of the necessary information, documentation and medical records, the trained lawyer in this field knows how to present this all to the insurance company and a jury.
What is mediation?
Mediation is a voluntary and non-binding negotiation session. The attorneys will discuss the case before a neutral party, who listens to the facts of the case and has knowledge of the applicable law of the case. The mediator is usually a judge or attorney who has vast experience in personal injury disputes. If no settlement is reached at mediation, the case can move forward toward an alternative disposition. Many times, mediation is helpful in resolving cases or refining issues prior to a trial.
What is arbitration?
Arbitration is a binding method of alternative dispute resolution. This is a cost-effective and efficient way to resolve a case. Arbitration is most appropriate for a straightforward case with limited issues of fact, but more complex matters can also be arbitrated. The parties to an action mutually select an arbitrator to hear the case. Evidence is presented in the form of witness testimony, medical records, photographs, statements, and reports. The arbitrator, who is usually a retired judge or attorney, makes a determination on the credibility of the evidence and the applicability of the law, and renders a final and binding decision on the parties concerning the issues presented. The arbitrator is the person who determines the amount of compensation the plaintiff will obtain for the injuries sustained.
What information will be of help to my attorney?
The simple answer is everything. From your prior health and treatment history, to the new treatments and injuries (damages) to how the accident occurred, is all important. The three factors in presenting a case are: damages (the value of the injuries), how the accident happened and who is at fault (liability), and insurance coverage. The last factor is a practical one, considering that uninsured individuals and/or entities ARE subject to payment of any verdict, but collecting on the judgement after verdict requires a new â€œcollectionâ€ procedure.
What type of settlement am I entitled to?
Considering the three factors mentioned above, the trained attorneys in negligence field are able to determine a range figure for a reasonable settlement. That does not always translate into a precise figure, but it does enable the client to properly evaluate the claim and make a â€œbusinessâ€ decision on whether to accept an offer or not. A trial by jury, or even arbitration, is not always that predicable and one loses â€œcontrolâ€ over the benefits or consequences of a good or bad jury result.
The range provided by your counsel helps you realize if the pending insurance company offer is fair, or not. But, do note that the client and only the client makes the final decision after advice from counsel.
Retaining Legal Counsel---the First Step.
A client should feel comfortable with his or her attorney, not only given the counselâ€™s experience in the field, but the counselâ€™s ability to attend to the case, answer all questions (there is no such thing as a â€œsilly questionâ€), and the counselâ€™s attention to the law and the case.
Itâ€™s not enough that your lawyer be experienced. Does the counsel have the drive, attention AND the ability to attend to your needs? Larger firms, or an individual practitioner can likely obtain the same results in any given set of circumstances. Both work off a contingency fee retainer, meaning that there are no set fees up front. The attorney is paid by the result. In New York the attorney is entitled to one-third of the result and the attorney generally pays for the expenses as required. If there is no recovery, there is no fee.