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How is Medical Malpractice Defined in New York?

When we go to a doctor’s office, hospital, or medical facility we go because we feel that seeking treatment gives us the best chance to make a medical recovery from the illness or injury we are coping with. Unfortunately, as we all too often discover, medicine is not an exact science and bad medical outcomes can occur. In some cases, the bad outcome may be the product of an error or mistake, but in other cases, the doctor or medical professional may take all expected and medically proper steps. Thus, medical malpractice clearly means something beyond the occurrence of a bad outcome.

If you have been seriously injured due to suspected improper actions by a doctor or other medical provider, the experienced medical malpractice attorneys of Sullivan & Galleshaw can fight for you. To schedule a private and no-cost legal consultation, call us at 718-843-0300.

What Is Medical Malpractice?

Many people may assume that if a condition gets worse after treatment, a medical malpractice case obviously exists. However, medical malpractice has a specific and narrow legal definition. Under New York law, there are three main elements that must be present to sustain a viable medical malpractice claim.

  1. A doctor-patient relationship giving rise to a duty of care must be present. If a doctor-patient relationship exists a duty of care owed by the doctor is inherent.
  2. The medical provider breaches a duty owed to the patient.
  3. The breach of duty is the actual and legal cause for the patient’s injury, death, or reduced chance of survival.

Some common types of medical malpractice claims include injuries during the birth of a child, surgical tools or implements that are left in a patient’s body, failure to provide adequate oxygen during surgery, and other claims.

Medical Malpractice “Loss of Chance” Claims

One particular type of medical malpractice case involves where a doctor fails to make a diagnosis or when the diagnosis is delayed. In either case, the patient may allege that the doctor’s failure to make a timely diagnosis resulted in a loss of chance of survival. In other words, the “loss of chance” doctrine is a cause of action allowing a plaintiff to recover based on the reduction in likelihood the patient has of recovery. The plaintiff does not have to show that the doctor or medical professional caused or even aggravated the condition. Under this theory, they simply need to show a reduced chance of recovery due to negligence.

medical malpractice attorneys in new york

If this sounds like a rather expansive area for litigation, the truth is that the courts in New York often take a narrowing approach by viewing the loss of chance as the harm itself. This framework allows for recovery only from the value represented by the reduction of the chance of survival or to experience a superior medical outcome. In New York, as per Birbeck v. Central Brooklyn Medical Group, the harm resulting from the loss of chance is calculated by multiplying the full amount of awarded damages by the plaintiff’s likelihood of survival that the time of the missed diagnosis or misdiagnosis.

How Long Do I Have to Bring a Medical Malpractice Claim?

As with most causes of actions, a potential injury victim only has a limited amount of time to file suit against an allegedly negligent or reckless medical professional. The general rule is that an injured patient must bring suit for medical malpractice within two and one-half years, thirty months, of the alleged act of malpractice. In instances where a treatment relationship continues ostensibly due to the patient not discovering the malpractice, the statute of limitations period will begin to run at the end of continuous treatment for the condition. However New York, unlike a number of states, does not have a discovery rule which tolls the statute of limitations until the malpractice is discovered. For certain injury types where the problem can remain concealed for years, New York’s discovery law may have the effect of immunizing the doctor from liability. Therefore, patients who suspect that something is wrong or feel that their medical concerns are not being adequately addressed should always seek additional medical opinions.

Suspect a Medical Malpractice Injury in New York?

If you suspect an injury due to medical negligence or medical malpractice the experienced personal injury attorneys of Sullivan & Galleshaw can fight for you. To schedule a confidential and no-cost legal consultation, call 718-843-0300 or contact us online today.


Over our many years practicing personal injury law, our highly experienced legal team has earned a reputation for excellence. Our attorneys have appeared on major media outlets such as Fox News and MSNBC . Our firm’s legal accomplishments have been profiled by the New York Law Journal, the Los Angeles Times, ESPN, and the Associated Press. We have won multiple verdicts in excess of $1 million, making us proud members of the Million Dollar Advocates Forum, a prestigious organization which admits fewer than 1% of all attorneys in the United States. We were named Super Lawyers in 2011, and enjoy a perfect 10/10 Superb rating on national attorney database Avvo.

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