September 18, 2019

Will it be malpractice?

Question:

Two years ago a mass was found in my breast, the mammogram confirmed that the mass was "suspicious" and should be monitored at 6 month intervals but the doctor I was seeing at the time never really acknowledged it and it was never monitored (I wasn't able to see anyone for it without his referral) I am now trying to have it checked again with a new doctor, so my question is if it's now shown to be malignant and could have been caught during those two years would it be malpractice?

Answer:

A suspicious mass that was not properly treated is a feature of every case I've handled that involves delayed-diagnosis of breast cancer. The statute of limitations is 2 1/2 years in NY, so you would need to act quickly.


August 5, 2019

Just found out I have a younger Brother and sister would that complicate a wrongful death lawsuit ?

Question:

My father was killed in a cycling accident and while preparing my case I found out I may have a brother and sister. They don’t have my fathers last name will this pose a problem

Answer:

Non-marital children may be "distributees" of any amount recovered in a wrongful death lawsuit if paternity has been established. These are complex cases with proceedings in both Surrogate's court and Supreme court.


July 18, 2019

Can I sue a plastic surgeon for emotional distress due to liposuction that left me lopsided. It was 3yrs and 8 months ago

Question:

I had breast reconstruction after being diagnosed and treated for breast cancer. At the time of exchanging the expanders for implants, the plastic surgeon was to also remove some fat from hips to help plump up the deep scars that were left from the initial surgery. By doing so I believe he lipoed more from one side than the other, which left me lopsided and distressed for the longest time. I made him aware of my concern at my follow up visit and he said let’s wait until all the swelling goes down or just lose weight. I was taken aback by his remark. When I first walked into his office I was not lopsided, I’m no surgeon but common sense tells me that if you take 2 cc’s out of one side you would take 2 cc’s out of the other whether you use the fat or not, you throw it away, so your patient doesn’t leave lopsided. I haven’t been back since. At that time we were postponing anything else because I had to start chemo and other surgeries that were more important. I look in the mirror to this day and still can’t believe a plastic surgeon would be that careless.

Answer:

Dissatisfaction with the results of a cosmetic procedure rarely amounts to a medical malpractice case, unless there was a 'departure from the accepted standard of care' on the part of the surgeon resulting in permanent injury. You are entitled to receive a copy of the operative report from the surgeon, which might explain the imbalance. If there was surgical malpractice, as Mr. Bower noted, you would have had to file suit within 2 1/2 years of surgery. You don't say if you ever returned to the surgeon after the first follow-up visit, but you could always seek out another plastic surgeon to correct the aesthetics. Best of luck.


July 17, 2019

Can I sue the city I hurt myself on city property

Question:

I was walking on a bridge this morning and I twisted my ankle by stepping on a open crack on the bridge. I feel due to the pain and my ankle hurt, to the point I'm hoping. Later in the day I noticed my feet swollen up and I cant walk. Painful I cried even to get out the car and walk to a step. I had to come to the clinic and they gave me crotches and bandages my left ankle. The slight movement my ankle pains me. Cant work, cant drive due to my sprain ankle.

Answer:

A Notice of Claim needs to be filed with 90 days. Depending on the bridge, it could be the responsibility of the NYC Dept of Transportation, MTA Bridges & Tunnels or the Port Authority of NY & NJ. I've successfully handled quite a few of these cases; they are technically complex because there's almost always a legal battle to obtain records of prior inspections to show that the authority knew about the hazard but didn't fix it. If an x-ray shows you have a fracture, and the open crack was a hazard for pedestrians, it may be a case worth pursuing. A photo of the 'open crack' will be needed.


July 11, 2019

Top quality personal injury lawyer?

Question:

wife and two children age 10 they are twins hit by drunk driver all injured and taken to hospital ongoing doctor visits now

Answer:

Rochester has some fine lawyers. Try https://www.mcba.org/member-resources/lawyer-referral-service.aspx


July 9, 2019

Kings county, NY waiting judge apprv'l 4 payout wrongful death case. How long?? wait since May' 2019

Question:

all family memebers amounts , lawyer fees, and medical bills were agreed on by all family memebers & defendents then attorney forward request for approval to judge with no approval and no status. How long does it take??

Answer:

A wrongful death compromise petition usually takes months to get approved. After that, there will be further proceedings in the Surrogate's court to distribute the proceeds. Talk to your attorney. Congratulations on the settlement!


July 8, 2019

Parent died in bicycle accident. Not married to mother so im next of kin. what are my rights when it comes to filing a law suit?

Question:

My Fathers Brother is trying to file a claim before me. Am I protected as next of kin since im his only son.

Answer:

I've handled many of these cases. Assuming there was no will (which is the most common situation), if there was no spouse, and you were the only child, you would receive everything recovered in a wrongful death suit. His brother may think he has a claim, but he doesn't, and no "race to the courthouse" is going to change that. BUT, where there is animosity between the next-of-kin, you need a lawyer to make sure the petition filed does not falsely state that there were no children. See this: https://www.nycourts.gov/courthelp/WhenSomeoneDies/intestacy.shtml


June 28, 2019

Can 2 lawsuits be filed for the same medical malpractice suit?

Question:

My brother passed away due to septic shock caused by an infection. He has a young child but was not married. My mother was going to file a lawsuit against the hospital. However, the child's mother has already started her own process of filing a claim against the hospital. Can another lawsuit be filed against the hospital by my mother? Who has rights to file a suit?

Answer:

Whoever gets appointed as the Executor (or it there was no will) Administrator of the Estate is the named plaintiff in the lawsuit. If the decedent left no will, usually it's the surviving spouse, parent or child, as the case may be - not everyone is eligible for that appointment - the appointment does not affect distribution of any money damages, or "who gets what". As next-of-kin, you and your mother should have your questions answered by the lawyer handling it, or retain your own lawyer if you can't get answers.


June 18, 2019

Is this a malpractice case?

Question:

When I was 4 months pregnant with my daughter they found a 4x9 cm cyst on my right ovary by ultrasound... when I asked my doctor what we were going to do about it she said nothing it would disappear. My daughter was born by c section and I had a tubal ligation done at the same time. The next day when they removed the catheter they found that my bladder had been nicked during the c section. I was rushed in for emergency surgery by another doctor and when i was they found a 9x15 cancerous tumor on my right ovary... this was the "cyst" they found earlier in the pregnancy... the removal of which caused extra insiscions and scarring and an almost 2 month recovery time. I feel my doctor was negligent because she didn't follow up and eve tho she did the tubal ligation failed to see this and left it. Do i have grounds for a lawsuit? By the way I live in New York

Answer:

Ovarian cancer is very serious. Assuming the pregnancy went to term, you're looking at a 5 month delay in diagnosis - during which time the 'cyst' almost doubled in size - and when you were eventually diagnosed, your oncologist would have seen from the pathology what stage the cancer was at. The question is to what extent the cancer progressed in 5 months. The pathology report will tell a lot about the type of cancer it was, and there are published statistics on growth and survival rates. Your OB-GYN's assessment that it was benign may have exposed you to unnecessary risk and allowed the cancer to develop, especially if you have family history of breast or ovarian cancer. Your OB-GYN and other hospital records will need to be reviewed. See a medical malpractice lawyer without delay.


May 1, 2019

How do I know if I have a medical malpractice case?

Question:

Six months after my total hip replacement surgery, I was back in the operating room having an exploratory surgery to figure out why I was in more pain than before the THR surgery. The surgery turned into a revision bc the prosthesis was loose, the surgeon was able to knock it out of my femur. Fast forward a year or so later and I am still in pain bc this prosthesis is loose now. My ortho surgeon who performed both surgeries has politely told me to seek help else where. Long story short, in the process of seeking other opinions, one dr suggested I get tested for a metal allergy. Turns out I am allergic to nickel, which is part of the mix of metals my current and past hip.I had almost every test known to man to try and figure out why my hip keeps failing. Not once did my surgeon think to test for metal allergies! If only we knew before he rushed me into the exploratory surgery turned hasty revision, i’d be back to normal by now instead of crippled and needing a 3rd THR to put in hardware that is nickel free. Would this be failure to diagnose? My life and in turn my young children’s lives have been terrible bc of my chronic pain and inability to be as active.

Answer:

I sympathize with all that you've been through, but you're describing a rare situation, with no 'acute' reaction to the prosthesis, and there is an ongoing debate about the need for pre-surgery allergy testing in non-symptomatic patients. You appear to have had a number of second opinions - and for a lawsuit, you'd have to establish your original surgeon "departed from the accepted standard of care" (as in any any med mal case). Ask the surgeon who is doing your third hip replacement (and who is familiar with your history) if your original surgeon committed malpractice. The answer might be no. If the answer is yes, you should see a lawyer. Best of luck.


April 24, 2019

Can I Get A Lawsuit against NYCHA?

Question:

I Put a Ticket In, in February For a Messed Up wall outlet that had exposed Wires. Now here we are in April the outlet Blew Up and Burned My 2 Year Olds Right Foot. Help

Answer:

You gave them a written request to fix this problem before someone got hurt. They didn't respond, and now it's happened. A classic case. You need to act quickly - with all City cases, a Notice of Claim needs to be filed within 90 days. Take photos of the child's foot, and the exposed outlet. Try to get the hospital record. My experience v.s NYCHA is that they are aware of the many problems they have and may be willing to settle out of court.


April 8, 2019

Criteria for malpractice attorney's taking a potential case !

Question:

Just thinking this loud here. Initially I was told by my attorney ' we need to see if your case has merit". After 3 months of reviewing records by medical experts, she now says ' we have to see if your case will win 200 %". We all know there ...

Answer:

The standard of review for medical negligence is whether there was "a departure from accepted practice" in the medical care you received that was "a substantial factor" in causing significant harm - in a delayed diagnosis case, the medical negligence needs to be shown to have permitted your condition to worsen substantially, and consequently significantly reduced your chance of a better outcome. A complete set of medical records can take some time to obtain. Speak to you attorney. If you're not getting satisfactory answers, consider seeking a second legal opinion.


April 4, 2019

How long do I have to wait for my settlement been waiting since 2008

Question:

I broke my ankle in 2008 I have pins and a plate in my ankle path mark still haven't settled my case what can I do

Answer:

You need to talk to your lawyer (assuming you have one). If your accident happened in 2008 and your case wasn't filed until years later, that would explain some of the wait. Maybe you were a minor at the time and you've only just turned 18. Maybe the case is under appeal; there is often more than one defendant in a case and maybe they have a dispute between themselves; maybe an insurance company is refusing to provide coverage. Maybe one of the parties is in bankruptcy. Who knows? Your own lawyer knows! - ask them.


March 11, 2019

Multiple defendants

Question:

Do attorney's shy away from a malpractice case if there are multiple defendant physicians in a case !

Here's the scenario: I spoke with the expert who reviewed the records, he was able to establish causation. However the attorney now says that he can't take the case as there are multiple defendants ! But he knew all along that multiple doctors were involved. Why shy away after making me wait for 2 months for records review !. I guess its better than dropping the ball after he agrees to file the case on my behalf ! No wonder some potential plaintiffs solicit multiple attorneys at the same time !

Answer:

You have already passed an important threshold if you've had a medical expert review the records and tell you it's a malpractice case. I wouldn't speculate as to why the attorney you had didn't want the case, but it's not unusual to have multiple defendants in a medical malpractice case. Taking a medical malpractice case is a serious, long-term commitment for any attorney. There are many factors to consider, including the complexity of the medical issues, the degree of fault, patient non-compliance, potential defenses to the action, and the extent of damages involved. There may be another med mal attorney out there willing to take a look.


January 24, 2019

Did a medical error or failure to assess and monitor patient's condition led to a coma?

Question:

My father had resection with revision stablize fusion C2 T2 (tumor in spinalcord) on Friday jan 18th. Dr. said the surgery went well. I saw him Saturday and he was responding normally but with alot of pain. Monday I went to see him only to find out he's been admitted to the ICU Sunday night and NO ONE contacted me. They said he s confused and stop responding and then a ct scan was done showing bleeding in the middle of brain. He never open back his eyes since Sunday and now he's acoma and has stable intracranial hemorrhage which the doctor said is rear and they haven't seen this in 7 years which leaves me to believe they have no experience to deal with this situation. His ct scan are performed every 6 to 12 hrs and shows swelling but the bleeding stopped but no mental response only react to inflict pain from nurse to see his limbs move. The last option was told they need to remove back of skull to relieve pressure from brain which is more risky and I don't think these surgeons are experienced enough to do it. Something went wrong and I believe the hospital is at fault and reacted too slow. Now the family are devastated and feel uncertain about the doctors.

Answer:

Intracranial hemorrhage is a serious and rare complication of this type of surgery. It may or may not have been due to physician error. It's unfortunate that communication from the hospital staff is unsatisfactory, but transfers from the ICU to another hospital are difficult to obtain, because of the risk involved for the patient. That shouldn't stop you from requesting it, if you have lost confidence in the ICU team. You need to ask the surgeon why this happened, and what his chances are. Without seeing the patient's chart, no attorney on here can tell you why this happened. Since this is an ongoing situation, do not threaten legal action, but consider speaking to a malpractice attorney when things quiet down. You don't say what hospital he is in, but if it's a City hospital, and the family has a claim, it needs to be filed within 90 days.

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