10 Misconceptions About New York Medical Malpractice Lawyers

1. They like to file frivolous lawsuits.dictate what treatment patients should get. The
Wrong. Filing a medical malpractice lawsuit in Newphysician should be smart enough to know what
York is downright difficult. A lawyer must firstpossible conditions the patient may be suffering from,
conduct a thorough investigation of the facts andand order those tests that will either confirm, or rule
then have all the medical records reviewed by aout those possible medical problems. If the doctor
medical expert. Only after the expert has confirmeddoesn't know enough about the patient's condition,
evidence of wrongdoing; that the wrongdoing causedthen he should be referring the patient to a specialist,
injury; and that the injury is significant, can theor calling in other doctors to consult about this
attorney go forward and file suit.problem.
Remember, nobody likes a frivolous lawsuit. It's badIf you want to look at why health care costs have
for the lawyer, the client, the doctors, and the Courtincreased, one need only look at the compensation
system. While there may always be differences ofthat health insurance executives receive and question
opinion about what happened and who is responsiblewhy they are paid millions of dollars per year.
for the victim's injuries, a New York Medical6. They're looking for a quick settlement to squeeze
Malpractice lawyer is ethically prohibited from filing amoney from the insurance company.
lawsuit that has no merit. Besides, who wants toFalse. There is no malpractice insurance company in
waste thousands of hours of their time prosecuting aNew York that would permit themselves to be taken
case that has no merit, and spent countless amountsadvantage of. The insurance companies in New York
of money to pursue a case that doesn't belong in thethat represent doctors and hospitals hire some of
Court system?the best and brightest trial lawyers in the state to
2. They sue everyone who saw the patient, even ifrepresent them from the initial stages of a lawsuit all
there's no reason.the way through trial and appeals.
Most of the time, this is incorrect. A lawyer isImportantly, the insurance company would never
ethically bound to sue only those individuals who canallow an attorney to squeeze them for a 'quick
be directly linked to the client's injuries. Sometimes,settlement'. It simply doesn't happen. In fact, most
after reading a hospital record it appears as if nursesmalpractice cases here in New York are resolved only
and health care providers participated in the eventsshortly before or during trial. A lawyer that thinks a
that led to the client's injuries. In those cases it maymalpractice claim will be resolved immediately after
be necessary to name people in the lawsuit thatfiling the lawsuit is naïve, and not experienced
might be peripherally involved.with New York malpractice claims.
Once it becomes clear during the course of the7. They can settle a case without the client's consent.
lawsuit that certain individuals had nothing to do withWrong. In New York, the client must consent and
the malpractice or causing injury, the patient's lawyeragree to any settlement. If the client does not agree
is likely to dismiss that person from the lawsuit-to the settlement, then the case continues forward.
either after they have given testimony or shortlyA lawyer is prohibited ethically and morally from
before trial.settling a medical malpractice or injury lawsuit without
3. They get 1/3 to 1/2 of the settlement or verdicttheir client's consent.
as their fee.In fact, when a lawsuit is settled, it is best done in
Wrong. In New York the fee is less than that. In aopen court, 'on the record', where a record is made
medical malpractice case, the lawyer's fee is basedof the terms of the settlement. If the settlement is
on a sliding scale which is set by law. It is less than 1done privately, there are specific legal requirements
3. In fact, the lawyer's fee only starts at 30% andthat must be set forth in the papers confirming the
decreases as the amount we recover for our clientsettlement. Otherwise, one party may have difficulty
increases. This sliding scale has been in effect in Newenforcing the settlement.
York since 1985, and benefits the injured client, not8. They can settle a case involving an infant if the
the lawyer.parent consents to the settlement.
This is how a New York malpractice lawyer calculatesWrong again. In New York State, any case involving
his fee:an infant (a child under the age of 18 years) must be
(1) The expenses that the lawyer has laid out tosupervised and overseen by the trial court. If a
prosecute your case gets reimbursed to the lawyersettlement is agreed upon by the parties in the
from the total settlement amount.lawsuit, the lawyer representing the injured infant
(2) Of the remaining amount, the lawyer's fee ismust now apply to the trial court for permission to
calculated.settle that case.
If your award is anywhere from $1 to $250,000, theThe lawyer is required to explain to the judge why
lawyer's fee is only 30% of that amount.he believes the settlement amount is appropriate and
If you are awarded anywhere fromshow to the judge medical evidence of the child's
$250,001-$500,000, the lawyer's fee on that segmentinjuries and evidence that the injuries are resolved or
of the award drops now to 25%.will get better over time. If the lawyer cannot
If you are awarded anywhere fromsupport the claim that the settlement is appropriate,
$500,001-$750,000, the lawyer's fee for thatthe trial judge will not approve the settlement, and
segment drops again to 20%.the case will continue, regardless of the parent's
This drop in the attorney's fee continues until youbelief that the settlement is a good one.
achieve over $1.25 Million. Anything over $1.25 million,9. They take any case that walks in the door.
the attorney's fee remains at only 10%.Wrong. It does not benefit a lawyer to accept a
This fee is significantly different than in a casemedical malpractice case that has little monetary
involving a car accident or a trip and fall. In thosevalue or little merit. The malpractice lawyer works
'negligence' cases, the lawyer's fee in New Yorkjust as hard on a large case as he does on a small
State is 1/3 of your award, after the expenses haveone. The amount of money and time spent to
been repaid to the law firm.prosecute medical malpractice cases are enormous.
4. They hate doctors and hospitals.These types of cases are unlike car accident cases
Wrong. Most malpractice attorneys recognize thator slip and fall cases which are must simpler to
most physicians and hospital staff work hard at whatprosecute. Lawyers who regularly handle medical
they do and appreciate the patients they treat. Themalpractice cases here in New York typically reject
problems arise with those few physicians who don't98 out of 100 cases that walk in the door. Out of
practice medicine in accordance with the standards ofthose one or two cases that are accepted for
their specialty. It's those few bad apples that areinvestigation, most are rejected after being reviewed
careless and cause harm to patients.by a physician. This is the screening process that
Remember, lawyers are people too. They needgood malpractice lawyers use to evaluate a case.
physicians and hospitals too, and rely on their10. They like to go to trial.
expertise when they are ill.This is often true! A New York medical malpractice
5. They are responsible for increases in health carelawyer must have sufficient knowledge and
costs and the premiums that doctors pay for theirexperience to go to trial and take a verdict if the
malpractice insurance.insurance company refuses to settle the case. In that
Wrong. There are many studies that have beeninstance the lawyer has no alternative but to present
published by well-educated and well-credentialed folkshis case to a jury so that a panel of impartial folks
who have consistently stated that increasedcan determine whether their claims are true. If true,
premiums for medical malpractice insurance have littlethe jury will decide how much to award to the
to do with the lawyers who file malpractice lawsuits.injured victim.
In fact, I just read an article where AnthonyA lawyer who takes a case solely to try and obtain a
Bonomo, the Chief Executive Officer of PRI -settlement does the client no justice. The lawyer
Physicians Reciprocal Insurance Company (one ofmust be prepared from the outset to go to trial. This
two major malpractice insurance companies here inis the only way to achieve the best possible result
New York), confirmed that lawsuits have little to dofor the injured client. If the insurance company
with the rise in malpractice premiums that doctorsknows that the lawyer is afraid to go to trial, they
must pay for their medical malpractice insurancestand a much better chance of taking advantage of
policies.this fact and low-balling the settlement negotiations
Some physicians argue that they practice 'defensiveand staying low.
medicine' in order to run tests the patient doesn'tWhen a case goes to trial, it means that both sides
really need. They also argue that running all theserun the risk of losing. The question always is which
tests will prevent some lawyer from later claimingside is going to blink first and recognize that settling
that certain tests should have been done to checkthe case is a better business decision than a jury
for medical conditions that were never considered byverdict that could far outstrip what they felt the
the doctor.case was worth.
The problem with this argument is that lawyers don't