Medical Malpractice

Medical malpractice is a general term used to describe a treatment or lack of treatment that violates good and accepted standards of medical care. 

To prevail in any medical malpractice case, the plaintiff (i.e., the patient/family) must prove three things: (1) negligence, (2) causation, and (3) injury.  Stated differently, true medical malpractice exists where the act or omission of a physician, physician's assistant, nurse practitioner, registered nurse, therapist, or other provider causes significant and permanent harm, or results in a wrongful death. 

When deciding whether to pursue a claim for medical malpractice, it is critical that patients and their families understand the difference between medical malpractice from a theoretical point of view, and a meritorious lawsuit that should be pursued in civil court. 

Theoretically, every medical error could form the basis of a medical malpractice lawsuit.  However, the fact that an error occurred does not mean that patient has a case or, more importantly, that the case should be tried before a judge or jury for resolution.  For example, where there is a bad outcome without a meaningful error, where there is a medical error that does not cause harm, or where a medical error causes an injury that is minor or temporary, the costs associated with prosecution of a claim may outweigh any potential recovery. 

At the opposite end of the spectrum are meritorious claims that require skilled legal counsel and well-credentialed experts to prove how a medical misadventure caused harm, and to secure damages associated with a lifetime disability or loss of a loved one. 

How often does medical malpractice occur?

Statistically, actionable medical malpractice is relatively uncommon given the quantity of medical services delivered throughout the country on a day-to-day basis.  That being said, medical malpractice does occur and, depending upon the patient, the results can be catastrophic. 

In 1991, a Harvard Medical Malpractice Study titled "Incidence of Adverse Events and Negligence In Hospitalized Patients," was published in the New England Journal of Medicine.  The study's authors reviewed more than 30,000 patient records from hospitals throughout New York State and found that "adverse events" occurred in 3.7% of hospitalizations and that 27.6% of the adverse events were due to medical negligence.  Stated differently, of the 30,000 records reviewed, there were 1133 adverse events -- 280 of the adverse events were due to medical malpractice. 

In 2006, additional medical malpractice statistics were published in the New England Journal of Medicine in an article titled "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation."  The authors reviewed 1400 closed malpractice claims from five malpractice insurance companies and concluded that 80% of claims were for what the medical reviewers considered to be "significant physical injury," "major physical injury," or death.  The reviewers also concluded that the majority of claims were for injuries or death judged to be the result of a medical error. 

In an effort to keep track of adverse events and improve patient safety, the Joint Commission On Hospital Accreditation (JCAHO) created the sentinel event database to collect reports from hospitals when a "patient safety event" results in death, permanent harm, or severe temporary and intervention required to sustain life.  The last published review of the database revealed 2966 events, including: 370 wrong-site surgeries, 365 operative/post-operative complications, 326 medication errors, 221 deaths due to delayed treatment, 144 patient falls, 124 deaths of patients in restraints, 85 transfusion-related events, 57 infection-related events, 51 fires, and 49 anesthesia-related events.

What are the most common types of medical malpractice?

Common medical errors include the failure to timely diagnose and treat a stroke or heart attack, birth injuries, emergency room mistakes, improper diagnosis, cancer misdiagnosis, labor and delivery complications, retained foreign objects, surgical errors, prescription medication errors, negligent discharge, and misreading of diagnostic imaging (e.g., x-rays, MRI, CT).

Across all medical fields, approximately 7% of all physicians have a claim brought against them each year.  Statistically, the medical specialties with the most claims are neurosurgery, cardio-thoracic surgery, obstetrics/gynecology, general surgery, plastic surgery, gastroenterology, urology, emergency medicine, orthopedic surgery, and internal medicine.  While claims tend to involve some medical specialties more than others, medical malpractice can occur in any medical discipline or setting, including:
Why should you retain an experienced medical malpractice lawyer?

Experienced medical malpractice attorneys are skilled at screening cases to ensure that only meritorious claims are pursued.  Likewise, an experienced attorney -- with a practice focused upon medical malpractice claims -- knows which experts are necessary to properly position a case for settlement and, in the absence of settlement, how to properly present a case at trial.

For example, our experienced medical malpractice attorneys know that proving how a child's brain was injured during birth often requires four, five, or six experts in the fields of obstetrics, perinatology, neonatology, pediatric neurology, pediatric neuroradiology, and placental pathology.  Likewise, the medical negligence attorneys at Bottar Law, PLLC, know that proving how, when and why an aneurysm failed can require a battery of proof, including testimony from a cardiologist, cardio-thoracic surgeon, neurologist, internist and radiologist.  Our experience also tells us that a series of experts is often necessary to debunk theories that the defendants will advance in an attempt to avoid responsibility for professional negligence. 

In addition, decades of experience have taught us that medical malpractice cases do not settle easily or quickly out of the court.  While most legitimate claims settle, sometimes the parties cannot agree on exactly who is responsible and/or the value of the damage.  In this circumstance, a jury decides.  Experience has taught us that jurors want to be taught the medicine by reputable experts with input from a competent attorney.  We know that the transfer of knowledge from an expert, to a jury, is time-consuming and expensive.  Over three decades of practice, we have built a network of world-class experts along with the financial resources necessary to advocate for our clients with excellence.

What is the "value" of your case?

It depends on the nature of the claim, as well as the patient.  In New York State, a patient is entitled to recover for pain and suffering, as well as economic damage (e.g., lost wages, medical expenses, etc.).  To answer this question in greater detail, a competent medical malpractice attorney should meet with a potential client and review his or her medical records with an expert.  Some examples of our work on behalf of injured patients are listed on our results page.

What does it cost to hire an experienced medical malpractice lawyer?

The Syracuse medical malpractice lawyers of Bottar Law, PLLC, work on a contingency basis.  This means that the attorneys are not paid for their time unless there is a recovery by settlement or jury verdict.  There is no out-of-pocket cost to meet with our legal team to discuss your concerns. 

If there is a settlement or verdict, the typical legal fee is one-third of the net recovery.  The exact fee varies depending upon the type of case (e.g., personal injury versus medical malpractice) and the defendants involved (e.g., local physician versus federally-funded health center).

What is the statute of limitations for a medical malpractice case in New York?

The applicable statute of limitations depends upon a number of variables, including the facts of the case, as well as the age and capacity of the parties. 

New York's medical malpractice statute of limitations is set forth in N.Y. C.P.L.R. section 214a, which provides that a medical malpractice action "must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure."  Where the action is based upon the discovery of a foreign object in the body of the patient, an "action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier."  Under N.Y. C.P.L.R. section 208, a claimant's infancy or insanity tolls the limitations until the disability ceases, but in medical malpractice cases this can only extend the limitations period a maximum of ten years.

Do you have a legitimate medical malpractice lawsuit?

To speak with Bottar Law, PLLC about your injury or loss, please complete a contact form, email us at, or call us at (315) 422-3466 or 1-800-336-LAWS.