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Personal Injury & Medical Malpractice Blog

Tuesday, August 22, 2017

What is the "standard of care" in New York medical malpractice lawsuits?

When undergoing surgery or any medical procedure, the last thing anyone hopes for is a malpractice issue. Unfortunately, not all medical practitioners perform perfectly every time they touch a patient. Whether the issue is exhaustion, distraction or other personal issues, physician negligence can quickly lead to patient injury and a malpractice lawsuit.

What Is Medical Malpractice?

Generally speaking, malpractice is defined as when a physician or other medical professional breaches the standard of care, and that breach causes a patient to be injured. The standard of care in New York is based on the locality rule, which requires a physician to possess the training and skills of other doctors in their community. While many jurisdictions reject this “locality” rule, New York law makers do not feel that rural doctors should have to achieve a standard of care that may not be attainable, as may be the case in a more urban community.


The standard of care also differs based on the patient’s illness or injury. For example, a neurologist treating a neurological issue will be held to the same standard of care of other neurologists in their community.

Proving Medical Malpractice

In order to prove medical negligence and practice case one will be required to show that:

  • A doctor patient relationship existed
  • The doctor made decisions or omissions that other doctors would not have done in the same situation
  • The patient was injured by the doctor's actions or omissions

Your medical malpractice attorney will need to enlist the help of a medical malpractice expert. This expert will testify as to what the standard of care is in this community, what other doctors would’ve done in the situation or would not have done in this situation, and how that action injured patient.

Types of Medical Malpractice

Medical malpractice will take a variety of forms from botched surgeries to incorrect prescribing practices. The most common medical malpractice lawsuits involve:

  • Failure to diagnose
  • Misdiagnosis
  • Surgical errors
  • Birth injuries
  • edication errors

New York Medical Malpractice Statute of Limitations

There is a time limit for when you can file a medical malpractice lawsuit in New York. This time limit is called a statute of limitations. The statute of limitations for medical malpractice actions in New York is 2 ½ years. Determining when the statute of limitations starts is a little complicated. In most cases the statutes will start running on the date that the malpractice occurred, which could be the day that the doctor committed the negligent act or omission.


There’re some cases where treatment is ongoing and in those cases as long as there is a continuous treatment plan for the illness the statute of limitations does not begin to run until 30 months from their last treatment.


In New York lawmakers have established a discovery rule that can extend the statute of limitations in some cases. For example, if a doctor left a surgical instrument in a patient’s body and they do not discover this for let’s say a year after the surgery, then the statute of limitations would not begin until the date that that foreign object was discovered.


Talk to New York medical malpractice lawyer Arthur O. Tisi now for a FREE consultation to better understand your rights to recover for medical negligence.



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