subject: Reparation For Medical Malpractice In New York [print this page] LEGAL TERMS LEGAL TERMS
Tortfeasor is a person who either intentionally or through negligence commits a civil wrong or tort, for which the law provides a victim, the right to seek monetary relief.
Joint tortfeasors To be considered joint tortfeasors, two or more individuals must either act together or their independent acts must culminate in a single injury to the subject.
Principle of contribution Each joint tortfeasor is responsible for paying a portion of the damages, based on the percentage of injury caused by his or her negligence towards the plaintiff. In the case of one defendant having to pay an unfairly large amount, he or she is entitled under the principle of contribution to recover the difference from the other culpable defendants.
Comparative negligence is a clause that reduces the amount a plaintiff can recover in damages from tortfeasors, if his or her own negligence has contributed in some measure to causing the said injury. It is a modification of the doctrine of contributory negligence which disallows any claim recovery by a plaintiff who has contributed even minimally, to causing the damages.
FAQ
When should a medical malpractice case be filed?
It should be filed within a period of 30 months from the time that the injury causing omission or commission occurs or from the time that an ongoing treatment, during which the act or omission took place, ends. This is subject to certain exceptions that a competent attorney can specify.
In case of more than one individual being responsible for the negligence who should the claim be brought against?
Damages may be claimed from joint tortfeasors. The plaintiff has the option of suing one or more of the tortfeasors, either individually or as a group.
If the case does not indict all parties responsible for the injury, who pays the damages claimed?
Each tortfeasor is responsible for paying a portion of the damages. If one defendant is compelled to pay more than his or her share of the damages, he or she may recover the amount from the other culpable defendants under the principle of contribution.
What are the implications when a third party is responsible for negligence?
The defendants are not vicariously liable for the acts of non-employee members of a medical team. However in exceptional cases a hospital can become liable for emergency physicians and other team members.
Does negligence on the part of the plaintiff rule out the option of damage claim?
The state of New York practices pure comparative negligence as opposed to contributory negligence. The plaintiffs own negligence therefore does not bar recovery of damages but the recoverable claim is proportionately reduced.
What is the permissible amount that may be claimed as damage?
There is no upper limit on the amount of recoverable damage in medical malpractice actions.
What are appropriate attorney charges in such a case?
There exists a sliding scale based on the payment of the claim. It may not exceed 30% of first $ 250,000, 25% of next $ 250,000, 20% of the following $ 500,000, 15% of next $ 250,000 and 10% of $ 1. 25million.
A higher fee is allowed by the court upon application by the claimant or by the attorney.
What is the usual manner of payment?
For pain already incurred, damages in excess of $250 000, must be made in periodic payments. Damages relating to future pain and suffering must be paid within a period not longer than 10 years from the time the case is decided.
What is the procedure in cases where monetary relief is sought from other sources like medical insurance?
It is mandatory to submit details of relief received by the plaintiff from all other sources. The claim amount is reduced by that much.
For more details about medical malpractice please visit http://www.eisenbergandkirsch.com/medical_malpractice_injury_lawyer or www.personal-injury-lawyers-attorneys-newyork.com
