New York Medical Malpractice Law - An Overview
By Aaron Larson
Law Offices of Aaron Larson
July, 2004
Important Notice: The following overview of New York's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of New York's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of New York.
Contents
- What Is Medical Malpractice
- Limits on Malpractice Damages
- Collateral Source Rule
- Rules for Expert Witnesses
- Joint and Several Liability
- Statute of Limitations
- Limits on Attorney Fees
- Additional Rules
- Why Use A Malpractice Lawyer
What Is Medical Malpractice
Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:
- Misdiagnosis of, or failure to diagnose , a disease or medical condition;
- Failure to provide appropriate treatment for a medical condition;
- Unreasonable delay in treating a diagnosed medical condition;
Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.
Limits on Malpractice Damages
New York does not limit damages in medical malpractice cases.
Collateral Source Rule
Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in New York there is a mandatory offset for collateral source payments, with the adjustment made by the court.
Rules for Expert Witnesses
New York does not impose special rules for expert testimony in medical malpractice cases.
Joint and Several Liability
Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. In New York, unless a defendant is more than 50% responsible for causing a plaintiff's injury, a defendant is liable for damages in an amount proportionate to the defendant's fault for the plaintiff's injury. This limitation is not applicable for injuries resulting from intentional acts, or reckless disregard of the rights of others.
Statute of Limitations
Medical malpractice actions must be filed within thirty months of the date of the act or omission that gave rise to the injury occurred. For malpractice actions based upon the presence of a foreign object within the body of a patient, the action must be filed within one year of the date that the foreign object was or should have been discovered. For medical malpractice actions involving minors, a minor ordinarily has three years from the date of his or her eighteenth birthday to commence litigation but the statute of limitations cannot be extended for more than ten years from the date of the act or omission giving rise to the injury.
Limits on Attorney Fees
New York limits attorney fees in malpractice cases to 30% of the first $250,000.00, 25% of the next $250,000.00, 20% of the next $500,000.00, 15% of the next $250,000.00, and 10% of any recovery greater than $1.25 million.
Additional Rules
A certificate of consultation with an expert must be filed within 90 days of the filing of the complaint in a medical malpractice action.
Where liability is conceded, either party may request arbitration of the amount of damages. The defendant may concede liability conditioned on a plaintiff's consent to arbitrate; such a concession of liability is not admissible for any other purpose.
New York requires mandatory periodic payment of future damages in an amount greater than $250,000.00.
Why Use A Malpractice Lawyer
Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.
Injured by a medical mistake? Talk to a medical malpractice lawyer for free.
Advertisement
Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.
Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.
Copyright © 2003-2006 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder, except as follows: You may link this article to your website, either directly or through an ExpertLaw Library index page, provided your link does not depict this article, its author, or expertlaw.com in a negative manner.