Frequently Asked Questions (FAQ's)

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.

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 lawyer’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 time…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.

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.

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.

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 patient’s meritorious claim, making the patient’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 client’s approval.

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 “half-day” 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.

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.

Mr. Santo has 38 years of experience in this field.  He was counsel at two of the most premminent plaintiffs’ counsels for more than 25 years as trial counsel in the field of personal injury and medical malpractice.  

When he decided to change his “business model” 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 “of counsel” to SAM and has been for close to 4 years.  Together, Mr. Santo and SAM work tirelessly together to evaluate the client’s potential claim and then decide on the strategy moving forward. Once the case is accepted, the case is handled by the SAM “team approach” 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.

SAM’s malpractice attorneys aim to provide friendly and compassionate service to our clients.

A personal injury is a physical, mental or emotional injury to a person as a result of another party’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

The legal and theoretical purpose of compensation is to make a party, who has been wronged, “whole” again. There are several types of compensation that you may be entitled to, including the following:

• Medical expenses
• Lost wages Pain and suffering
• Disfigurement
• Physical disability
• Emotional and mental suffering 
• Punitive damages 
• Mental disability
• Damage to property

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 else’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 “simplest” cases can present complicated “medical” 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 doesn’t know the answer, the response should be, “I’ll find out.”  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.  You’re entitled to PEACE OF MIND.

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 “Scaffold Law”, 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.

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 State’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. 

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.

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.

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.

The damages include loss of earnings, medical expenses, rehabilitative expenses, compensation for the pain inflicted, compensation for permanent disability, and more.

Workers’ Compensation is provided through the employer’s insurance company, allowing for immediate coverage of medical and hospital expenses. Workers’ 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 client’s proceeds, noting that one can not “double dip” on a claim.  The art of dealing with the liens is critical to the financial results of the client.

The most important qualification is experience. An experienced lawyer’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.

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.

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.