This article explains how a lawsuit gets started in New York.
WARNING: It is NOT a how-to DIY article.
Nor do I recommend doing this yourself...unless you're an experienced medical malpractice attorney.
Instead, this article is designed to show you exactly what has to happen in order to for you to start a lawsuit.
Before I get into the mechanics of what has to happen, you need to ask yourself WHY you want to sue your doctor.
WHY DO YOU WANT TO SUE YOUR DOCTOR?
The WHY is always important.
Is it because your doctor yelled at you?
It is because his staff was rude?
Is it because someone dropped the ball and didn't do what they were supposed to?
Is it because you went into the hospital without a significant problem and now you can't walk?
Is it because you had surgery and you came out much worse than when you went in?
Is it because your doctor failed to timely diagnose your cancer and now it spread throughout your body?
There are many reasons and motivations for WHY you might want to sue your doctor.
Also, before I get into the mechanics of HOW to bring a lawsuit, I want to touch upon what a lawsuit will do for you and importantly what it WON'T do.
WHAT A LAWSUIT WILL NOT DO FOR YOU
A lawsuit against your doctor will NOT get him to lose his medical license (in most cases).
A lawsuit against your physician will NOT get him banned from practicing medicine in New York (in most cases).
A lawsuit against your once-trusted doctor will not get him thrown out of his medical practice.
Instead, a lawsuit is designed to do one thing and one thing only...
WHAT A LAWSUIT WILL DO FOR YOU
Get you compensation for all the harms, losses and damages you suffered because he was careless.
Compensation means money.
A lawsuit in NY is designed to obtain money for you.
A lawsuit is NOT designed to get the doctor to apologize to you for what happened.
It is NOT designed to prevent these matters from happening again, although it can be a deterrent in some cases.
Is it NOT designed to allow you to tell the world what a horrible doctor this guy or girl is.
It's designed to hold the doctor accountable for his actions.
Once the damage has been done, we can't turn back time.
The doctor can't turn back the hands of time and start over again.
There are no do-overs once the injury has occurred.
If you remember the children's nursery rhyme Humpty Dumpty and the phrase "All the Kings horses and all the Kings men tried to put Humpty Dumpty together again," simply reinforces what happens when other doctors try to fix the problem. Most of the time, they're unable to make any significant improvement.
Our system of justice simply allows an injured patient to obtain money as a form of compensation for all their injuries.
There is no retribution against the doctor.
There is no vigilante justice.
An injured patient can't go and physically harm the doctor, otherwise they'll wind up in jail for a long time. That's not how the lawsuit process works.
HOW WILL YOU KNOW IF YOU MIGHT HAVE A CASE?
Ok, now that we know what a lawsuit is designed to do, let me explain how and why you'll get an inkling that maybe you want to sue.
- Your doctor told you the surgery would take at most 40 minutes. Instead, it took six hours to complete your surgery.
- You developed complications from your treatment but your doctor never told you about any possible side effects or complications.
- You're unable to return to work because of your injuries following your treatment and you're stuck at home wondering how you're going to support your family.
- You just delivered your baby and she was whisked away to the neonatal intensive care unit because she wasn't breathing and you don't know why.
- You were just diagnosed with advanced cancer and you specifically remember having an X-ray or a CT scan or an MRI not long ago and being told you were fine.
- You keep asking your doctor why you have these injuries following treatment and he keeps deflecting your questions and moving on to other topics.
There's usually a hint or a suspicion about something that happened. You may not be able to put your finger on it but you will usually suspect that something happened that shouldn't have happened. Maybe a friend or family member whispered in your ear that this shouldn't have happened. Maybe someone suggested that your doctor screwed up. Those suggestions will trigger your curiosity. It will usually sit with you for days, weeks or maybe even months.
One day you're going to ask yourself, "What if my doctor really did screw up and cause me all these injuries? What if my injuries are permanent? How am I going to survive? I have rent to pay. I have a mortgage. I have to put my kids through school. How will I put food on the table?" In all likelihood you won't have answers to those questions.
Those questions will get pushed back as you cope with your recuperation, assuming of course you can recuperate and didn't die as a result of your doctors' carelessness. Then, it would be your surviving family members who have these questions.
I will tell you that no matter which friends or family members you talk to, they will not have the answers to those questions. Now you begin to wonder whether you need an attorney. You begin to think that maybe a lawyer can help you.
HOW DO YOU FIND AN ATTORNEY WHO CAN HELP YOU?
The next question you're going to ask is "How do I figure out which attorney to talk to? There are so many lawyers out there. How do you know who is going to give you the right information?" That prompts you to think about who you know that might know an experienced attorney. Maybe a friend or co-worker used an attorney. Maybe someone in your family knows a good attorney. Then again, maybe they don't.
Let's assume for a moment that you don't know an attorney and don't know anyone who knows an attorney they can recommend. Who do you call?
Now your choices are limitless. Think about every form of marketing you can, from offline methods like TV, radio, magazines, billboards, postcards, mailings to online searches. If you choose to pick an attorney from common advertising methods, how do you pick one lawyer over the other? How can you tell which lawyer is right for you just from a 30 second TV commercial or a 15 second radio ad? Does a billboard you pass on the highway tell you whether they're a better fit for you than the next lawyer you see in another billboard half a mile down the road?
The problem is that there are so many attorneys who all say the same thing.
They all tell you they're experienced.
They all tell you they fight hard.
They all tell you they do everything to protect your rights.
Some will even tell you about their great results.
Some will boast of their great verdicts and settlements.
What you don't see is the fine print that says you cannot rely on their prior results to establish what kind of results they can get for you.
In another article, I'll go into detail about how you can find the best attorney for you and what you should look for when you don't know an attorney and don't know someone who can refer you to an experienced attorney.
Let's jump ahead now to the point where you've realize you need an attorney. You've also made an educated decision about which attorney is right for you. Let's go through now what we do to determine if you can sue your doctor.
WHAT AN ATTORNEY LOOKS FOR WHEN YOU CALL
The Initial Call...
You call the attorney's office and ask to speak to the lawyer.
You tell the receptionist that you think you have a valid case.
One of two things will happen.
Either you will be sent to an intake person to obtain your information for the attorney to review or you'll be connected to the lawyer. There are pros and cons to each. For now, go ahead and speak to whomever they connect you to.
You need to keep in mind that when you call, you must make your case sound interesting enough for the attorney to want to learn more. It's almost as if you're marketing yourself to the attorney and in a sense you are. You're trying to convince the attorney that he should stop what he's doing, listen to your tale of woe and agree to take on your case to begin a detailed and thorough investigation.
In order to make that happen, you've got to make your case interesting and intriguing to the attorney.
You've got to get him interested quickly.
Otherwise, he's not going to be willing to investigate your matter and will turn you away to seek out another attorney.
THE INITIAL CALL IS NOT THE TIME TO TELL YOUR WHOLE STORY
One of the key ways to make your case interesting is to stay focused in your initial call.
This is NOT the time to tell your entire story.
This is NOT the time to tell every detail of what happened to you.
This is NOT the time to explain stories about the events leading up to the malpractice.
You need to give the attorney or the intake person a headline or a title.
"My case involves a failure to diagnose cancer that has now spread throughout my entire body."
"I walked into the hospital for a minor surgical procedure and I came out paralyzed."
"My new doctor said I should find a malpractice attorney immediately since he said my first doctor clearly screwed up!"
The headline immediately tells the attorney what your case is about. It tells him why he should be interested in your case. Don't say "I'm telling you I have a million dollar case. You really want to take my case, because if you don't, another attorney will easily grab it up." That will just turn the attorney off and he'll wish you luck as he hangs up the phone.
FOCUS ONLY ON THESE QUESTIONS DURING THE INITIAL CALL
Here are the key questions you MUST keep in mind and need to answer in order to keep an attorney's attention:
- WHEN DID THE WRONGDOING HAPPEN?
- WHERE DID THE WRONGDOING HAPPEN?
- WHAT DO YOU THINK WAS DONE WRONG?
- WHAT INJURY DID YOU SUFFER BECAUSE OF THE DOCTOR'S WRONGDOING?
- HAS ANY DOCTOR CONFIRMED YOUR BELIEF THAT SOMETHING WAS DONE WRONG?
WHEN DID THE WRONGDOING HAPPEN?
The attorney needs to immediately identify if your matter is timely.
Every case in NY has a deadline in which to file a lawsuit.
If the time to file your case has expired, it doesn't matter what happened to you, the attorney will not be able to help.
You may not know the exact date or time when the doctor screwed up.
Maybe it happened over a period of weeks or months.
Tell the attorney that time frame.
Did you know there are different time limits to bring a lawsuit for an adult compared to a child.
There are different time limits if your matter happened in a private hospital compared to a municipal or State owned hospital.
There are different time limits for a baby who suffered injury during labor and delivery than for an adult.
Focus on when the wrongdoing happened.
WHERE DID THE WRONGDOING HAPPEN?
Did this happen in a private doctor's office?
Was it in a municipal hospital?
In a State hospital?
This is critical information that the attorney needs to know right away.
To help evaluate whether your matter is timely.
There are different time limits depending on whether your case happened in a private office, a municipal hospital or a state hospital.
It also helps to know if the attorney handles cases in the geographic location where your matter happened.
If this happened in Upstate New York and your attorney only practices law in the New York metropolitan area, he's going to have to refer you to a lawyer who practices upstate.
WHAT DO YOU THINK WAS DONE WRONG?
This is important for the attorney to know right away. You may know or at least suspect what was done wrong. If you know, tell the attorney right away.
"I think my doctor screwed up my surgery."
"I was in a coma for two weeks following my surgery. When I woke up the nurse told me something bad happened..."
"I kept telling my doctor about this lump in my breast and he kept blowing it off. A year later, in that exact location I was diagnosed with breast cancer..."
When the attorney asks you what was done wrong, he needs to get a sense of what kind of case is yours. Is it a failure to diagnose? Is it an improperly performed surgery? Is it a failure to treat? Is it an improper medication you were prescribed? The attorney looks at this question to begin asking himself who did what wrong.
WHO WAS CARELESS?
WHO did this?
Was it your doctor?
Was it a nurse?
Was it a doctor-in-training known as an intern or resident?
Was it a physician's assistant?
What it a nurse's aide?
Once he identifies WHO, he now has to explore WHAT was done wrong.
Don't go off on tangents.
Answer his questions directly.
If he wants additional information, he'll ask you for it.
WHAT INJURY DID YOU SUFFER BECAUSE OF THE WRONGDOING?
The answer to that question is important.
The attorney needs to know what injuries you received.
Is this a significant injury case or simply minor bruising?
Do you have long-term permanent injuries?
Are your injuries life-altering?
Are they disabling?
If your injuries are minor, it's going to be difficult for you to find an attorney willing to invest their hard earned money and precious time to investigate your case. Why? Because an attorney who decides to take on your matter will invest their own money to determine if you have a valid basis for a case. You don't have to pay anything upfront.
If your injuries are significant, the attorney is more likely to want to investigate your matter.
The lawyer also needs to know how the injuries have affected you on a daily basis.
HAS ANY DOCTOR SUGGESTED THAT SOMETHING WAS DONE WRONG?
There are times when one of your treating doctors tells you that the treatment you had by that 'other' doctor never should have happened. Sometimes, a doctor may come right out and tell you to find a medical malpractice attorney. Other times, a doctor may tell you that the treatment you received was improper and that's why you have all the problems you suffer from now.
There are other doctors who simply say nothing, hoping they won't get involved in any legal proceeding against your first doctor.
The attorney wants to know if anyone has criticized the care you received from the first lawyer.
If someone has, it gives an indication to your lawyer that maybe you have a valid case.
Because your treating doctor knows your medical condition.
Presumably he's reviewed your prior doctor's records and can comment on them intelligently.
If so, you're already ahead of the game in getting an expert to review and evaluate your case.
ONCE YOU ANSWER THESE QUESTIONS, THE ATTORNEY NEEDS TO DECIDE WHAT TO DO NEXT
Remember, this initial call is just a brief screening call.
The attorney will do one of two things at this point.
Either he will tell you that he can't help you and suggest you contact another attorney immediately, or he'll invite you in to his office to meet with you and gather many more details to decide whether to do a full investigation at that point.
IF THE ATTORNEY AGREES TO MEET YOU, KEEP THIS IN MIND...
Regardless of whether you think you have a case and regardless of whether your attorney thinks you have a valid case, it doesn't matter what either of you think. It's true. In New York we cannot start a lawsuit on your behalf just based on what you think or what your attorney thinks.
This type of case is unlike a car accident case.
It's unlike a trip and fall case.
It's unlike a dog bite case.
In those cases an attorney could literally start your lawsuit the next day and you'd be on your way.
Not true for medical malpractice cases.
Instead, if your attorney believes you have a valid case, he must first obtain all of your medical records.
He has to read all of your medical records.
Then, he has to hire a medical expert to read and review all your medical records.
A qualified medical expert must confirm these three things in order for you to bring a lawsuit:
- Your doctor violated the basic standards of medical care,
- His wrongdoing was a cause of your injury, and
- Your injuries are significant and/or permanent
Only after a medical expert has confirmed EACH OF THOSE THREE THINGS, are we permitted to file a lawsuit on your behalf. If the expert finds only one or two of those things in your favor, we are prohibited from filing suit. We must have all three items present in your case in order to go forward.
That's it for today explaining how to sue your doctor for malpractice here in NY.
Have questions about your matter?
If your care and treatment happened here in New York and you have not yet started a lawsuit, then I invite you to pick up the phone and call. I answer questions like yours every day and would love to talk with you.