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When You’re Lucky You Don’t Have A Medical Malpractice Case

Posted by Andrew J. Barovick | Feb 15, 2009 | 0 Comments

One of the hardest things about my job is telling victims of medical malpractice that I cannot take their case.  And what I do not say, although it is usually true, is that most other lawyers in my position will not take it, either.

It is not that I am unusually picky, or mean spirited.   It is simply a matter of being realistic.  The type of medical malpractice victim I'm thinking of contacts my office on a regular basis.  He or she often has a compelling story to tell, such as the woman I spoke to recently whose primary care physician ignored her repeated complaints of frequent urination, an unquenchable thirst, and weakness with fatigue–all clear symptoms of diabetes–until she collapsed at home and had to be rushed to the hospital, where she stayed for a week, incurring substantial medical bills, and missing time from work.  Luckily, she was able to leave the hospital in substantially the same state of health she was in before her collapse. 

But it was difficult to explain to her that because of her good fortune, it would, in my opinion, not be a worthwhile endeavor to sue her primary care physician for malpractice.   I explained (or tried, anyway) that to prove such a case, we would need to show not only that there was malpractice, and that the malpractice caused her injuries, but that the injuries were substantial and permanent enough to warrant the expense of bringing a law suit.   Many of you know, as well as I do, that obtaining medical records, conducting depositions, and hiring experts are just a few of many costly components involved in the litigation of such a suit, and these expenses can run into the tens of thousands of dollars.  Given a plaintiff's responsibility to pay disbursements at the end, and the lawyer's need to recoup and profit from his investment,  a responsible medical malpractice lawyer cannot take on a case unless there are significant and permanent injuries to the plaintiff, or a significant interruption to the plaintiff's ability to earn an income and support others.  That is the cold, hard reality.  And it is understandably difficult to accept for someone who has truly been treated negligently, as this woman had been.

What can you do in these circumstances if you are the victim of medical malpractice, but the damages are not significant enough to warrant bringing a medical malpractice case?  One option to consider is making a complaint about the doctor to the New York State Department of Health's Office of Professional Medical Conduct.  Your complaint will be taken seriously, and you will likely need to appear in person to answer questions from investigators.  But if you feel strongly enough that errors were mady by your doctor, and that those errors resulted in injury to you, this process may be worthwhile.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.