When a patient goes to her doctor for diagnosis or treatment, she assumes the doctor is trustworthy and will act competently. Unfortunately, this doesn’t always happen. Sometimes doctors make fatal errors that cause irrevocable harm to patients and their families. If your loved one passed away due to medical malpractice, you may be able to bring a wrongful death lawsuit for damages. The Syracuse medical malpractice attorneys at DeFrancisco & Falgiatano are available to provide a consultation to people who have lost a family member due to medical error.
Medical Malpractice and Wrongful DeathIf a person dies due to another’s negligence, the estate of the deceased may pursue damages through a wrongful death lawsuit, which must be filed within two years of the decedent’s death.
Under the New York Estates, Powers and Trust Laws section 5-4.1, the personal representative of a decedent’s estate may bring a wrongful death lawsuit. To establish a wrongful death claim, the personal representative needs to prove: (1) the death, (2) caused by the defendant’s wrongful conduct, (3) giving rise to a cause of action the decedent could’ve pursued in court had death not occurred, and (4) survival by one or more people who suffered a loss due to the death and damages the estate can recover. For a wrongful death lawsuit based on medical malpractice, the personal representative of the estate may bring a wrongful death lawsuit to recover damages for the surviving family members if the patient could have brought a medical malpractice lawsuit had the patient not died.
To establish the medical malpractice claim underlying the wrongful death suit, a plaintiff and their attorney must prove: (1) the healthcare provider owed a professional standard of care to the patient, (2) the provider breached the professional standard of care, (3) causation, and (4) damages. The professional standard of care in New York is determined by the locality rule. Under this rule, an expert will opine on the professional standard of care by evaluating what competent healthcare providers in the same specialty and the same geographic region would have done under the same or similar circumstances.
As with all medical malpractice lawsuits, an attorney will need to review the facts of the case and consult with an expert who is a physician, dentist or podiatrist. Only if the attorney determines that a reasonable basis for filing the lawsuit exists may the attorney file the medical malpractice complaint with a certificate of merit. The expert will be a licensed healthcare provider who may be board-certified in the same specialty as the defendant.
DamagesUnder New York law, the personal representative needs to establish pecuniary loss arising out of the death. This can include loss of support for next of kin. When a parent has passed away due to medical malpractice, the spouse and children may be able to recover for their economic losses, which encompasses more than simply the loss of income. It may be possible to recover for loss of services to the decedent’s spouse along with loss of parental care and guidance. When a child passes away due to medical malpractice, parents can claim loss of services.
In addition to a medical expert, a medical malpractice plaintiff and their lawyer may need to retain economic experts and financial analysts to estimate future losses such as lost wages and benefits. To form an estimate, experts may analyze the decedent’s expected work life and life expectancy, along with potential earnings.
Other economic losses can include funeral and burial costs and the costs of medical care needed by the decedent prior to death.
In New York, you can recover for the pain and suffering felt by the decedent prior to death, but you cannot recover for your own mental anguish at losing your loved one in an untimely fashion.
Consult a Seasoned Medical Malpractice AttorneyIf you lost a loved one due to medical negligence in Syracuse, you should discuss what happened with a skilled medical malpractice attorney who can evaluate whether you have a viable claim for medical malpractice and wrongful death. DeFrancisco & Falgiatano represents patients in Rochester, Syracuse and everywhere in Upstate New York, including in Elmira, Canandaigua, Oswego, Wampsville, Watertown, Cooperstown, Lowville, Herkimer, Utica, Ithaca, Auburn, Binghamton, Lyons and Oneida. Call DeFrancisco & Falgiatano at 833-200-2000 or contact us via our online form.