As a plaintiff’s attorney representing persons injured, or the family of someone killed, as a result of another’s negligence, whether medical malpractice or some other form of negligence, the goal is to obtain civil justice for that client. That means obtaining a monetary recovery that is commensurate with the injuries and/or death suffered. In other words, obtaining just compensation for damages caused by injuries and/or a fatality as prescribed by New York law.

This is the goal but there are some basic practical issues that must be considered before starting a case. These issues involve: a realistic appraisal of proving the case, the amount of a financial award that could be obtained and sustained on appeal under the law based on the damages suffered, the amounts of any liens on any award obtained and the costs of prosecuting the case

All of these factors are at play in making the decision to proceed. Unfortunately, sometimes there are plaintiffs that you would like to help as a trial lawyer but the realities involved make it impossible. This often is one of the toughest decisions to make and to tell the prospective client. If, for example, a doctor departed from good and accepted standards of medical practice in failing to properly diagnose a condition that resulted in a delay before the proper diagnosis was made but the non-diagnosis or misdiagnosis did not result in increased pain and suffering or alter the outcome for the patient, there is no case to prosecute despite what might be egregious medical malpractice. As upsetting as the failure to properly diagnose was, there is no case that can be pursued in terms of a civil case for monetary damages because the plaintiff was going to suffer all the injuries and damages even if the condition had been diagnosed earlier. You can turn around facts and come to the same conclusion concerning the viability of bringing a lawsuit. Suppose a patient had a rare condition that is very difficult to diagnose. The treating physician administered all the accepted standard tests that he/she believed should diagnose why the patient had the painful symptoms that the patient was experiencing. While the patient went through all the standard tests and treatment ordered, the physician consulted with other physicians, did research and then referred the patient for an esoteric test that helped make the diagnosis. Suppose that the patient suffered severely during the months of testing and attempted treatment before the diagnosis was made and that the patient suffered damage to an organ or was disabled because the diagnosis was not made earlier. If it is determined on expert review that the treating physician treated totally within accepted standards of medical practice in regard to the tests and treatment ordered, consulting other physicians, researching the clinical presentation and referring the patient, there is no medical malpractice to base a suit on notwithstanding the pain and suffering and damages suffered by the patient.

In considering what monetary damages could be awarded in a particular case, there are several elements that must be looked at. First of all, in New York, plaintiffs are awarded damages for conscious pain and suffering. This is important if a person is rendered unconscious immediately or never recovers from a surgery to a conscious state. Even if the injuries are significant, a pain and suffering award will not lie unless the plaintiff was conscious enough to experience some level of pain and suffering. In general, depending on the facts, there can be damages involving loss of income and medical expenses that have been incurred and will be incurred in the future. These can be substantial depending on the facts and individual plaintiff involved.

In wrongful death cases, another element of damages in New York is what is calculated to be the pecuniary loss to the next of kin of the deceased. When the death is of a plaintiff who was not contributing to the support of a wife, children, parents or other next of kin, the award for this element is obviously limited. If there is a spouse and children, there can be an award for loss of support and services including for children the loss of parental guidance, nurturing and education. These damages can be significant especially if the deceased leaves young children. These damages are separate from any pain and suffering award based on pain and suffering before death, which would go into the patient’s estate and is distributed according to a will or, if no will, by intestate statute.

Another important factor that must be considered during the investigation into the realities of the case is whether there are any liens that exist on any recovery obtained. For example, there could be a large Medicaid lien in regard to monies spent by Medicaid for medical care. Under some circumstances these amounts can be adjusted but usually they must be paid back out of any recovery. Other medical insurance may have to be paid back. If the amounts of any liens exceed a realistic amount of the potential damages in a case and they cannot be adjusted which would eliminate recovery for the client or make a financial recovery for the client minimal, the attorney will usually not proceed.

Because prospective plaintiffs have an emotional stake in regard to what happened to him or her or their loved one, it is very hard for them to accept the realities that have to be considered before a case can be started which might prevent the attorney from starting a lawsuit. Suing for monetary damages in a civil action is one way to try to redress a wrong. In some medical malpractice cases, where the particular facts make it impossible to bring a lawsuit, a complaint can be made to try to prevent the medical malpractice from occurring to someone else. This might sound altruistic but sometimes this is very important to the prospective plaintiff who understands that he or she cannot bring a medical malpractice lawsuit for monetary damages. If a victim of medical malpractice cannot under the facts of their individual circumstances bring a lawsuit but wants to try to make sure another patient does not suffer the same malpractice at the hands of a particular medical care provider, he or she can make a complaint to the New York State Office of Professional Conduct in regard to a physician or to the New York State Health Department in regard to a hospital or clinic.

What is important to know is that every good personal injury attorney wants to help his or her prospective client achieve civil justice, which would mean appropriate monetary compensation. Sometimes, however, the facts and the economic realities do not allow the attorney to bring a lawsuit.