Laws and Rules that Every Personal Injury Plaintiff Should Know

Civil litigation between private parties is a unique area of legal practice.  Every citizen has rights that which the law protects.  Every citizen also has responsibilities that which must be followed according to the letter of the law.  If you or a loved one has been harmed, you may have a valid legal basis to receive court ordered compensation from the offending parties. 

The experienced personal injury attorney practicing law in the Hudson Valley regions of New York is astute in knowing substantive law and procedural law.  Substantive law refers to those laws that define ones rights and responsibilities.

Understanding substantive law is sometimes the easy part for most people to understand.  Procedural law on the other hand, can be much more complex and confusing.  Procedural law instructs people on how to properly commence litigation against a defendant.  It also instructs attorneys on how to properly move through the many steps of bringing a case from start to conclusion. 

Perhaps the most important rules for most plaintiffs to understand are those that which relate to time limits for suing a defendant.   In New York, these time limits are called statutes of limitations.  The New York State Legislature has enacted laws that say how long the plaintiff has to sue a wrongdoer after the bad deed was committed.  Those rules are located in the New York Civil Practice Laws and Rules (CPLR) code books.

There is no one set time period for all possible bad deeds; so the time period will vary depending on the type of harm that which was done.  Let’s hone in on personal injury victims.

According to CPLR Section 214, these plaintiffs have three years to sue the person that caused them harm.  The clock starts to tick right at the moment the bad deed was committed.   If a plaintiff misses this timeline, the defendant’s attorney will most assuredly ask the court to dismiss the case as being barred by the statute of limitations. 

Another important rule that New York plaintiffs should know relates to whether or not a plaintiff can receive compensation if the plaintiff shares some of the fault for his/her injury.   New York is different from many other states in that the plaintiff can still collect compensation even if partially at fault for the accident and injury.  It is called comparative negligence.  The court and or jury will hear the case and determine fault.  A determination will be made as to how much each party is responsible for the accident; it will be in terms of a percentage.  So long as the plaintiff is less than 100% at fault, the plaintiff can collect something. 

The jury will determine the award and if the plaintiff is 10% responsible for the accident, then he/she will only receive 90% of the compensation awarded. 

Other important New York Laws and rules that should be discussed with you attorney are:

·      New York No-Fault laws

·      Dog Bite Liability

·      Procedural Issues when Suing the Government

 he attorneys at Greenberg and Greenberg handle personal injury cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.

Medical Malpractice 101: Hudson Medical Malpractice Attorney Explains the Important Basics

New York medical malpractice is a form of negligence.  Negligence is an event that occurs when one person or entity owes a duty to another person.  Any duty one owes to another is generally about not causing harm, using a certain level of precaution and care, and is about doing as a reasonable person would have done in a similar situation.  The duty could be a requirement to do, or not to so, something; an act or omission.  In the medical setting, medical providers have duties to not cause harm to patients and to properly treat patients.

The duty owed by medical professionals, also referred to as the standard of care, varies depending on several factors.  First, the region in which medical professionals practice affects the standard of care owed to patients.  Second, the specialty in which the professional practices affects the duty of care.  Third, different types of patients receive different standards of care.  For example, doctors who treat persons with diabetes must follow specific protocols in regard to treating diabetes patients.  Additionally, the patient’s age, race, sex, and secondary aliments may also affect how a doctor is required to treat him or her. 

This may sound very confusing to many people.  An experienced New York medical malpractice attorney will be able to help you figure out the standard of care that was due to you.  Further, expert testimony will be needed to testify as to what the standard of care is in each unique case. 

Once a medical professional fails to meet the requisite standard of care, he or she has committed an act of negligence.  But this alone is not enough to hold the practitioner civilly liable for your harm.  In order to be liable, the doctor’s negligence must have been the actual cause of your injury or damages.  This is referred to as causation and it must be proved at trial.

The injuries that you have suffered are referred to as damages.  Damages are broken down into several categories.  First are economic damages.  This includes the additional money you have spent on treating the injuries caused by the medical professional as well as lost earnings, and lost earning potential.  Then there are non-economic damages which compensate patients for pain and suffering.  Lastly, there are punitive damages.  Punitive damages seek to punish a medical professional for their negligence as a way to deter future medical malpractice.  Damages must also be alleged and proved during the course of a medical malpractice case.  Keep in mind that New York has not placed a cap on the amount of damages that you are entitled to receive in a Hudson medical malpractice case.

Lastly, in order to successfully hold your primary physician, dentist, nurse, or hospital liable for your harm, you must file suit within a specific period of time.  Attorneys refer to this as satisfying the statute of limitations.  The limitations period for medical malpractice expires 2 ½ years after the date of the negligence or after the date on which your continuous treatment ended.  In the case of foreign objects left inside your body, the limitations period expires one year after the date the object was discovered or after the date in which you received sufficient information to lead to such a discovery.   For a more detailed explanation of the statute of limitations, visit our page here for a blog post discussing the nuances of this important rule.

Because of the statute of limitations, you should quickly contact an experienced New York medical malpractice attorney if you or a loved one has been the victim of medical negligence. 

Medical Malpractice Statute of Limitations: What You Need to Know

In almost every single type of case, whether criminal or civil, there is a fixed period of time that a party must initiate an action within.  This time period is known as the statute of limitations.  Essentially, this is a time limit on your potential action.  The statute of limitations period if very important because if a party attempts to bring a claim when the statute of limitations has expired, that claim will be barred. 

Both federal and state governments create the various statute of limitation periods.  The New York State Legislature has codified many of the statute of limitation periods for civil litigation in the Civil Practice Law and Rules.  A lot of the time frames created by the legislature and contained in the Civil Practice Law and Rules come and go rather quickly.  This is why it is essential for an injured party to retain an experienced Hudson personal injury attorney to protect your rights.

Medical malpractice has a statute of limitations period.  It is provided for in Civil Practice Law and Rules Section 214-a.  This section provides for a two and a half (2 ½) year time limit on a medical malpractice claim.  Specifically, this section states “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complaint of . . . .” 

This is the general rule and requires the patient to bring the medical malpractice action right after the treatment rendered to him or her.  The statute of limitations begins to run whether or not the patient is aware of the wrongdoing.  Further, this statute of limitation applies to all medical providers, not just physicians, dentists, podiatrists, and surgeons, but also to nurses, hospital staff, physician assistants, hygienists, and other health care providers.

There are two exceptions to this rule.  The first exception is called the “continuous treatment doctrine.”  Under CPLR Section 214-a, an action for medical malpractice may also be brought within two and a half years of “last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure[.]” 

Thus, where a physician makes a mistake in treatment, the law provides him or her an opportunity to correct it without abridging the rights of an injured patient.  For instance, if a surgeon makes a mistake during a procedure in January and performs a second procedure to try and fix the mistake in March, the statute of limitations for the surgical error begins to run in March—not January.  It is important to note that the “continuous treatment” cannot be examinations undertaken at the request of the patient for the “sole purpose” of ascertaining the state of the patient’s condition.

The second exception is called the “foreign object” exception.  Under CPLR Section 214-a, an action for medical malpractice “based upon the discovery of a foreign object in the body of a patient, the 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.”

Therefore, the legislature has provided that a physician or surgeon who leaves a piece of medical equipment inside of a patient can be liable for this error after the two and a half year statute of limitations period has run.  This is as long as the patient did not know or should have known that the medical equipment was left inside of him or her.  An example of this is where a surgeon leaves a pad used to clot bleeding inside of the patient after the surgery.  However, it is important to note that a fixation device, such as a stitch, or a prosthetic aid or device, is not considered a foreign object and does not invoke this rule.

The medical malpractice statute of limitations is very important and requires an experienced Hudson medical malpractice attorney to determine what, if any, exceptions may apply.  The attorneys at Greenberg and Greenberg handle cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.