NYC Surgical Malpractice Lawyer | Nerve Damage Expert

The decision to undergo surgery is always made with a mix of hope and apprehension. We place immense trust in our medical professionals, particularly surgeons, to exercise the highest degree of care and skill. While modern medicine has made incredible strides, the human element in surgical procedures means that errors, though rare, can occur. One of the most devastating and potentially life-altering surgical errors is the accidental severing or damaging of a nerve.

If you or a loved one has experienced this devastating complication in a New York hospital, you are likely grappling with profound physical, emotional, and financial challenges. It’s critically important to get legal representation from a high-powered New York surgical malpractice lawyer with the ability to take on large hospitals and their insurance companies to pursue the largest possible financial compensation for you.

The Anatomy of an Error: How Nerve Damage Occurs in Surgery

Nerves are the intricate wiring system of the human body, transmitting vital signals between the brain, spinal cord, and every other part of the body. They control movement, sensation, and even the function of internal organs. Given their delicate nature and often complex pathways, nerves are vulnerable during surgical procedures, especially in intricate areas or during lengthy operations.

Accidental nerve damage during surgery can occur in several ways:

• Direct Transection (Cutting): This is the most severe form, where a nerve is completely or partially severed by a surgical instrument (scalpel, scissors, cautery device). This can happen due to:
  • Misidentification: The surgeon mistakes a nerve for another structure, such as a blood vessel or fibrous tissue, particularly in areas with complex anatomy.
  • Inattention or Distraction: A moment of lapsed concentration or distraction in the operating room.
  • Poor Surgical Technique: Inadequate precision, excessive force, or improper use of instruments.
  • Blind Dissection: Operating in an area without direct visualization, relying on tactile feedback or imprecise imaging.
  • Unexpected Anatomical Variation: While surgeons are trained to account for common variations, unusual anatomical presentations can increase risk.
• Stretch or Traction Injury: A nerve can be stretched or pulled excessively during manipulation of tissues, leading to damage without a direct cut. This often occurs when retractors are used improperly or for too long, or when a limb is positioned awkwardly during a prolonged surgery.
• Compression Injury: Pressure on a nerve from surgical instruments, clamps, or even swelling within a confined space can compromise its function. Hematomas (collections of blood) or improper tourniquet use can also lead to compression.
• Thermal Injury: Heat generated by electrocautery devices (used to stop bleeding) can inadvertently burn and damage nearby nerves if not precisely controlled.
• Chemical Injury: Certain irrigating solutions or local anesthetics, if improperly administered or in excessive concentrations, can have neurotoxic effects.
• Ischemic Injury: Interruption of blood supply to a nerve due to clamping of vessels or prolonged pressure can lead to nerve tissue death.

Common surgical procedures where nerve damage is a known, though often preventable, risk include:

• Orthopedic Surgeries: Hip replacements, knee replacements, shoulder surgeries, spinal surgeries (especially lumbar and cervical fusions, discectomies, where nerves are in close proximity to the spine).
• Abdominal Surgeries: Hernia repair (ilioinguinal, genitofemoral nerves), appendectomies, gallbladder removal.
• Cardiac and Thoracic Surgeries: Procedures in the chest cavity.
• Plastic and Reconstructive Surgeries: Face lifts, breast augmentation/reduction.
• Thyroidectomy: Recurrent laryngeal nerve damage affecting voice.
• Dental and Oral Surgeries: Inferior alveolar nerve, lingual nerve.

The Devastating Consequences: What Nerve Damage Means for the Patient

The consequences of an accidentally cut or damaged nerve can range from minor, temporary dysfunction to severe, permanent disability, profoundly impacting a victim’s quality of life. The specific symptoms depend heavily on the nerve affected, its function, and the extent of the damage.

Common consequences include:

• Loss of Sensation (Numbness/Anesthesia): The most common symptom. The affected area may become completely numb, experience reduced sensation, or have altered sensations like tingling, burning, or “pins and needles” (paresthesia). For instance, damage to the femoral nerve can cause numbness in the thigh, while radial nerve damage can affect sensation in the hand.
• Motor Weakness or Paralysis: If a motor nerve is damaged, the muscles it controls may become weak, partially paralyzed (paresis), or completely paralyzed. This can affect mobility, fine motor skills, and the ability to perform daily tasks. For example, a severed peroneal nerve can lead to “foot drop,” making walking difficult.
• Chronic Pain (Neuropathic Pain): One of the most debilitating consequences. Nerve damage can lead to persistent, severe, burning, shooting, or electric shock-like pain that is often resistant to conventional pain medications. This type of pain can be excruciating and significantly impair daily functioning.
• Autonomic Dysfunction: Some nerves control involuntary bodily functions like sweating, blood pressure, or digestion. Damage to these nerves can lead to issues such as excessive sweating, dry skin, altered blood pressure regulation, or digestive problems.
• Muscle Atrophy: If muscles are denervated (lose their nerve supply), they will begin to waste away due to disuse, leading to visible shrinking and further weakness.
• Loss of Function/Disability: Depending on the nerve, the victim may lose the ability to grip objects, walk, speak clearly, control bladder/bowel function, or engage in their profession or hobbies. This can lead to long-term or permanent disability.
• Psychological and Emotional Distress: Living with chronic pain, disability, and the sudden loss of independence takes a tremendous toll. Victims often experience depression, anxiety, anger, frustration, and a profound sense of loss. The inability to work or enjoy life as before can severely impact mental health.
• Secondary Complications: Nerve damage can lead to other issues, such as pressure sores (due to lack of sensation), infections, or contractures (tightening of muscles/joints) if physical therapy is not consistent.

Medical Malpractice in New York: When Nerve Damage Becomes a Legal Claim

Not all unfortunate surgical outcomes constitute medical malpractice. Medical malpractice occurs when a healthcare professional deviates from the accepted standard of care, causing injury to a patient. The “standard of care” refers to the level of skill, knowledge, and care that a reasonably prudent and competent healthcare provider would have exercised under similar circumstances.

In the context of a surgeon accidentally cutting a nerve in a New York hospital, a medical malpractice claim typically hinges on proving the following four elements:

1. Duty of Care: The surgeon owed a duty of care to the patient. This is almost always established once a doctor-patient relationship exists (i.e., you were their patient and they performed surgery on you).
2. Breach of Duty (Negligence): The surgeon breached that duty of care by failing to act as a reasonably prudent and competent surgeon would have under the same circumstances. This is the crux of a nerve damage malpractice claim. It involves demonstrating that the surgeon’s actions (or inactions) fell below the accepted standard, leading to the nerve injury. Examples of potential breaches include:
   1. Failure to adequately pre-operatively map or identify nerve pathways in complex surgeries.
   1. Improper use of surgical instruments that directly cut or damage a nerve when it could have been avoided with reasonable care.
   1. Excessive or prolonged retraction causing stretch or compression injury.
   1. Failure to monitor nerve function when appropriate (e.g., during spinal surgery).
   1. Proceeding with surgery despite insufficient experience or expertise for a particular complex procedure.
   1. Failure to promptly recognize and address nerve damage during or after surgery.
3. Causation: The surgeon’s breach of duty directly caused the nerve damage and the resulting injuries. This means there must be a direct link between the negligent act and the harm suffered. For instance, if the nerve damage was an unavoidable complication despite the surgeon exercising the highest care, causation may not be established for a malpractice claim. However, if the nerve was cut due to misidentification that a competent surgeon would not have made, then causation is clear.
4. Damages: The patient suffered actual harm (injuries, losses) as a result of the nerve damage. Without demonstrable damages, there is no basis for a claim.

Important Note on Inherent Risks

You should understand that all surgeries carry inherent risks, and nerve damage can sometimes be a recognized, though rare, complication even when the surgeon acts within the standard of care. For a medical malpractice claim to succeed, the nerve damage must be proven to be due to negligence – a deviation from the accepted standard of care – not merely an unfortunate outcome. This distinction is often subtle and requires expert medical testimony.

The Legal Process in New York: Steps to Recovery

If you suspect medical malpractice involving nerve damage in a New York hospital, the following steps are crucial for protecting your rights and pursuing a claim:

1. Seek Immediate Medical Evaluation (Again): Your priority should be your health. Obtain a second opinion from an independent neurologist or surgeon specializing in nerve repair. This is not only vital for your recovery but also provides objective medical documentation for your potential legal case.
2. Gather Records: Request all your medical records related to the surgery, including pre-operative assessments, operative reports, anesthesia records, post-operative notes, imaging scans (MRIs, CTs), and any nerve conduction studies (NCS) or electromyography (EMG) results. In New York, hospitals and doctors are obligated to provide you with your medical records upon request, though they may charge a reasonable fee for copying.
3. Consult a New York Medical Malpractice Attorney: This is the single most important step. Surgical malpractice cases in New York are incredibly complex, fiercely defended, and require top legal capabilities.
   1. Proven Skills: Look for attorneys with a proven track record specifically in New York medical malpractice claims, particularly those involving surgical errors and nerve damage. They will understand the intricacies of New York’s CPLR (Civil Practice Law and Rules) related to malpractice.
   1. Contingency Fee: Most reputable New York medical malpractice attorneys work on a contingency fee basis. This means you do not pay upfront legal fees. Their payment (typically a percentage of the final settlement or award, often 33.3% to 40% depending on the stage of the case) is contingent on them winning your case.
   1. Initial Consultation: During your initial consultation, the attorney will review your case, discuss the facts, and assess its viability.

The Medical Malpractice Claim Process in New York: A Detailed Overview

Once you retain a New York medical malpractice attorney, the process generally unfolds as follows:

1. Initial Investigation and Expert Review:
   1. Your attorney will meticulously gather and review all your medical records.
   1. They will then retain a medical expert witness (a board-certified surgeon or specialist in the relevant field, often from outside New York to avoid conflicts of interest). This expert will review your records to determine if the standard of care was breached and if that breach caused your nerve damage.
   1. Certificate of Merit (CPLR § 3012-a): In New York, your attorney cannot file a medical malpractice lawsuit without first obtaining a “Certificate of Merit” from a qualified medical expert. This document certifies that there is a reasonable basis to believe that medical malpractice occurred. This requirement acts as a gatekeeper to prevent frivolous lawsuits.
2. Filing the Lawsuit (Summons and Complaint):
   1. If the expert review supports your claim, your attorney will draft and file a Summons and Complaint with the appropriate New York State Supreme Court (the trial court for these cases). This document formally initiates the lawsuit, outlines the allegations of negligence, and states the damages sought.
   1. Statute of Limitations: This is a critical deadline. In New York, the Statute of Limitations for most medical malpractice claims is two years and six months (2.5 years) from the date of the malpractice, or from the end of continuous treatment for the same condition by the same provider. There are very narrow exceptions (e.g., “discovery rule” for foreign objects left in the body, but this rarely applies to nerve damage). Missing this deadline will permanently bar your claim.
3. Discovery Phase: This is generally the longest and most intensive phase of litigation.
   1. Interrogatories: Written questions exchanged between parties.
   1. Demands for Documents: Requests for all relevant records, including internal hospital policies, incident reports, and the defendant’s training and disciplinary records.
   1. Depositions: Sworn out-of-court testimonies. You will be deposed by the defense attorney, and your attorney will depose the defendant surgeon, hospital staff, and other relevant witnesses. This is a crucial stage for gathering information and evaluating witness credibility.
   1. Expert Witness Disclosures: Both sides will identify and exchange reports from their medical experts. Your attorney will likely retain additional experts, such as vocational rehabilitation specialists or economists, to quantify future medical costs, lost earning capacity, and other damages.
4. Mediation and Settlement Negotiations:
   1. Many medical malpractice cases in New York settle out of court, often after the discovery phase is complete.
   1. Mediation, a facilitated negotiation process with a neutral third party, is common.
   1. Your attorney will engage in extensive negotiations with the defendant’s insurance company (which represents the surgeon and hospital).
5. Trial (If No Settlement):
   1. If a fair settlement cannot be reached, the case will proceed to trial before a judge and jury.
   1. Both sides present their evidence, including witness testimony (factual and expert), medical records, and other exhibits.
   1. The jury will decide whether malpractice occurred and, if so, the amount of damages.
6. Appeals:
   1. Either party may appeal a verdict or certain rulings. This can further extend the legal process.

Types of Damages You Can Recover in a New York Medical Malpractice Claim

If successful, a medical malpractice claim for nerve damage aims to provide comprehensive financial recovery for all losses suffered. New York does not have a cap on medical malpractice damages for economic or non-economic losses. This is a significant advantage for victims compared to many other states.

Damages typically include:

1. Economic Damages (Quantifiable Losses):
   1. Past and Future Medical Expenses: This is often a substantial component, covering:
      1. Initial treatment for the nerve damage (e.g., nerve repair surgery, pain management).
      1. Ongoing rehabilitation (physical therapy, occupational therapy).
      1. Medications (pain relievers, nerve-specific medications).
      1. Assistive devices (braces, wheelchairs).
      1. Home modifications (ramps, accessible bathrooms) if required due to permanent disability.
      1. Long-term care costs if necessary.
   1. Past and Future Lost Wages/Loss of Earning Capacity:
      1. Income lost due to inability to work during recovery.
      1. Loss of future earning potential if the nerve damage results in permanent disability or significantly limits your ability to perform your job or pursue your career. This often requires an economist’s analysis.
   1. Other Out-of-Pocket Expenses: Travel to appointments, assistive care, specialized equipment, etc.
2. Non-Economic Damages (Subjective Losses – “Pain and Suffering”):
   1. Physical Pain and Suffering: The actual physical pain, discomfort, and agony caused by the nerve damage, including chronic neuropathic pain.
   1. Mental Anguish and Emotional Distress: The psychological impact, such as depression, anxiety, PTSD, fear, frustration, and humiliation.
   1. Loss of Enjoyment of Life: The inability to participate in hobbies, recreational activities, social events, and daily activities that you once enjoyed. This can be profoundly impactful, especially if the nerve damage affects mobility or dexterity.
   1. Loss of Consortium: If applicable, this compensates the spouse of the injured party for the loss of companionship, intimacy, affection, and support due to the spouse’s injuries.
3. Punitive Damages (Rare):
   1. These are rarely awarded in medical malpractice cases in New York. They are reserved for situations where the healthcare provider’s conduct was egregious, reckless, malicious, or demonstrated a wanton disregard for the patient’s safety. They are intended to punish the wrongdoer and deter similar conduct, not to compensate the victim.

The Critical Role of Your New York Medical Malpractice Attorney

Given the complexities and challenges of medical malpractice litigation in New York, the role of an experienced attorney cannot be overstated:

• Expert Network: They have established relationships with top medical experts across various specialties, essential for proving a breach of the standard of care.
• Legal Knowledge: They are intimately familiar with New York’s specific medical malpractice laws, court procedures, and the tactics employed by defense attorneys and hospital legal teams.
• Case Valuation: They can accurately assess the full scope of your damages, including future losses, ensuring you seek appropriate compensation.
• Negotiation Skills: They are skilled negotiators who can effectively advocate for your rights against powerful insurance companies.
• Litigation Experience: If a fair settlement isn’t reached, they are prepared to take your case to trial and present a compelling argument to a jury.
• Resource Management: Malpractice cases are expensive. Attorneys often cover the significant upfront costs of expert witness fees, court filings, and depositions, which are reimbursed from the settlement or verdict.
• Emotional Support: Beyond the legal aspects, a good attorney provides crucial guidance and support during what is an incredibly stressful and emotionally draining process.

What to Expect: Challenges in Medical Malpractice Claims

Be prepared for a challenging and lengthy process:

• Complexity: These cases are highly technical, involving complex medical and legal concepts.
• Defense Resistance: Hospitals and their insurers vigorously defend against malpractice claims to protect their reputation and financial interests.
• Timeframe: Medical malpractice lawsuits in New York can take several years to resolve, especially if they proceed to trial.
• Emotional Toll: The process can be emotionally taxing, requiring you to revisit traumatic events and medical details repeatedly.

Justice After Nerve Damage Surgical Malpractice in a New York Hospital

An accidentally cut nerve during surgery in a New York hospital is a catastrophic event, capable of permanently altering a victim’s life. New York’s legal framework, which does not impose caps on damages, offers the potential for comprehensive compensation, but dealing with this intricate system demands top legal skills.

If you or a family member has suffered nerve damage due to suspected surgical negligence, your immediate steps should be to prioritize your medical care and then promptly consult with a highly experienced New York medical malpractice attorney. They will be your steadfast advocate, carefully building your case, and fighting to ensure you receive the maximum compensation possible to rebuild your life after such a devastating surgical error.

Injured Due to Surgical Negligence in NYC? Hold Them Accountable.

When you seek medical care in New York City, you place your trust in doctors, hospitals, and healthcare providers. But what happens when that trust is broken, and their negligence leads to catastrophic injuries or wrongful death? The consequences can be devastating, leaving you with exacerbated pain, permanent disability, and unimaginable financial strain.

At Rosenberg, Minc, Falkoff & Wolff, LLP, we’ve dedicated four generations to championing the rights of injured New Yorkers. We are a top-rated New York City medical malpractice, focusing on complex surgical negligence claims, and recognized by the New York Law Journal as a recipient of the “Top Personal Injury Lawyer” award by Martindale-Hubbell.

Why Choose Rosenberg, Minc, Falkoff & Wolff, LLP for Your Medical Malpractice Case?

• Over $1 Billion Recovered for Injured New Yorkers: We have a formidable track record of securing justice in medical malpractice cases, achieving life-changing outcomes for victims and their families. Our notable medical malpractice results include a $15 Million Jury Award against a Hospital, a $15 Million Neurosurgical Brain Injury case, $10.5 Million for Malpractice Infant Brain Damage, and a $9 Million Brain Injured Baby Settlement.
• A Success Rate of Over 95%: If we take on your medical malpractice case, you can be sure our winning team will be dedicated and focused on getting you the compensation you deserve. We are relentless in pursuing negligent medical professionals and institutions.
• Unrivaled Trial Skills: Our firm was founded by legendary trial attorney Gustave G. Rosenberg in 1922, a legacy carried on by trial powerhouses like Peter Rosenberg (third generation) and Daniel C. Minc. Mr. Minc, a National SuperLawyer and one of America’s Top 100 Personal Injury Lawyers, is renowned for his cross-examination skills and has achieved multi-million dollar verdicts and settlements totaling far in excess of five hundred million dollars.
• Swift Investigation & Expert Collaboration: Medical malpractice cases are incredibly complex. We meticulously investigate every detail, collaborating with leading medical experts to prove negligence and demonstrate the full extent of your injuries. This rigorous preparation, often including compelling presentations in trial, leads to favorable outcomes, whether through aggressive out-of-court settlements or powerful jury verdicts.
• Comprehensive Compensation for Your Suffering: We fight to maximize your monetary compensation for all damages, including: exorbitant past and future medical bills, lost wages and earning capacity due to altered ability to work, and the profound non-economic damages of pain, suffering, emotional distress, and loss of enjoyment of life. This money helps our clients live with dignity, independence, and a degree of comfort they so desperately need and rightfully deserve.

Seek Maximum Financial Compensation for Medical Negligence – Your Fight is Our Fight

When a medical professional’s negligence causes harm, it impacts not just one individual but an entire family. We believe a successful claim can force powerful interests to take steps to make all of our lives safer, ensuring justice is done.

Let us worry about your case so you can focus on your recovery. Our commitment is to strong, healthy, and ongoing communication, explaining every development in plain language.

If you or a loved one has suffered due to medical malpractice in New York City, reach out to our experienced trial lawyers at Rosenberg, Minc, Falkoff & Wolff, LLP today. You pay no attorneys’ fees unless we win your case. To schedule your free consultation, call us at 212-344-1000 or contact us online.