Medical Malpractice

Despite medical advances and a broadening spectrum of well-trained medical professionals, medical malpractice is still one of the most prevalent forms of malpractice in the United States with the latest statistical data showing that around 225,000 people die every year due negligent or careless actions of health care professionals.

According to the Journal of the American Medical Association (JAMA), medical malpractice is also the third most common cause of death in the United States. It has been estimated that around 12,000 patients die from needless surgical procedures, 7,000 die from medication-related errors, 80,000 die from infections acquired in medical facilities, 106,000 die from bad effects of drugs and 20,000 people die from various other medical mistakes.

According to American law, what exactly constitutes medical malpractice? Medical malpractice takes place when a medical professional deviates from what is considered “the health care standard” or “the standard of care” in medical treatment or acts in a negligent or careless manner which results in patient’s injury or death. The tort law defines “the standard of care” as “a diagnostic and treatment process that a clinician should follow for a certain type of patient, illness, or clinical circumstance”.

Some of the most common types of medical malpractice are:

  • Failure or delay in establishing a proper diagnosis of a patient’s condition
  • Prescribing wrong medication / dosage
  • Failure to warn the patient about the risks associated with a certain medical procedure
  • Misreading or misinterpreting X-rays, blood work results or any other medical test results
  • Failure to take into account the patient’s medical history
  • Injuries to the mother or the child during pregnancy and delivery (e.g. failure to diagnose ectopic pregnancy, various delivery injuries like birth fractures, untimely or inadequate response to fetal distress, failing to control or stop excessive maternal bleeding, failing to note preeclampsia, failure to monitor the baby's oxygen intake before and after delivery, negligent genetic testing before the child is conceived, inadequate use of forceps or vacuum etc.)
  • Providing medical treatment without obtaining patient’s prior consent
  • Surgical and post-surgical errors
  • Avoidable amputations
  • Removal of a perfectly functioning internal organ
  • Plastic surgery errors
  • Complications from receiving the wrong blood type
  • Insufficient or excessive anesthesia
  • Medical equipment malfunctioning
  • Failure to diagnose cancer (or misdiagnosing cancer)
  • Failure to diagnose a stroke
  • Endoscopy and Colonoscopy errors
  • Emergency room negligence
  • Confusing sperm samples at fertility clinics

Although, medical malpractice is the third most common cause of death in the United States, only 85,000 lawsuits are filed each year. This is quite a low number considering that the estimated number of medical-malpractice injuries and deaths is one million and 225,000 respectively per year. The data from the U.S. Bureau of Justice shows that when medical professionals or facilities are taken to court because of their careless or negligent behaviour, the average compensation was $400,000. However is it is worth noting that New York is among the top three states in terms of the highest compensation (in 2011, New York had the highest medical malpractice payout in the amount of $677 million).


Contrary to popular belief, pursing a medical malpractice case will NOT increase the cost of your medical case. This is one of the reasons why people are hesitant to contact medical malpractice lawyers and further explore legitimate medical-malpractice claims. Another concern that they have is that their doctors will find out of their case and refuse to treat them.

If you or your loved one have sustained injuries as a result of medical malpractice, and you want to be compensated for it, please contact a seasoned medical malpractice attorney because dealing with malpractice cases can be complicated, stressful and time-consuming. The attorney will thoroughly review the details of your case, your medical records, conduct interviews with you, your family members and friends and then determine whether you there are grounds for a medical malpractice case, i.e. whether your case is actionable.

The two main ways of settling a medical malpractice case (as your personal injury lawyer will inform you) are through:

Formal lawsuit which typically starts when an individual (“The Plaintiff”) files a civil complaint against another person, company or government body (“The Defendant”).

Informal settlement – Many personal injury claims are resolved through an informal settlement which is a form of a negotiation between the Plaintiff and his or hers lawyer, on one side, and the Defendant, on the other. If an informal settlement is reached, the two sides agree to forego filing of a formal lawsuit and choose to resolve the matter through an agreeable financial compensation.

In order for a medical malpractice case to be successful, the injured party has to prove two things:

That the medical professional was negligent by illustrating that are a non-negligent doctor would have dealt with the medical situation differently;

That the injury sustained was a result of the negligent actions of the medical professional.


The statute of limitations is a legal term that implies a certain time period within which the Plaintiff has to file a lawsuit in the civil court system. The statute of limitations can vary across different jurisdictions and states, although the principles are quite similar.

The New York City Bar states that the statute of limitations in medical malpractice cases is 2 1/2 years from date of malpractice or from end of continuous treatment rendered by the party or entity you intend to sue for a particular condition, illness or injury.


To successfully resolve a personal injury case the best course of action would be to consult an experienced medical malpractice attorney who has a detailed understanding of the facts and applicable legal processes, and enough experience, focus and agility to pursue the case. The law firm of Silver & Kelmachter, LLP has over 30 years of experience representing plaintiffs who had been badly injured, including the families of those who have died as the result of accidents, malpractice or negligence.

Silver & Kelmachter, LLP is a determined and focused law firm, carefully screening cases and accepting only those with serious injuries. The firm’s partners Perry D. Silver, ESQ. and Leslie D. Kelmachter, ESQ. will be directly involved in every aspect of your case, from the first phone call to the conclusion. Because each case is unique, the firm invests the time necessary to achieve the best possible results for every client.

Our firm accepts referrals from other attorneys.


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Silver & Kelmachter, LLP
11 Park Place, Suite 1214
New York, New York 10007
Phone 212-661-8400
Fax 212-661-1242