New York Medical Malpractice Law


What is Medical Malpractice

Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.

A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.

Medical Negligence

Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,

  • Failure to diagnose a medical condition or disease,

  • Misdiagnosis of a medical condition or disease,

  • Failure to provide medically appropriate treatment,

  • An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;

  • Mistakes in the prescription or dosing of medication.

Informed Consent

Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.

Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.

Damages in New York Malpractice Cases

Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.

Joint and Several Liability

When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. New York follows a modified rule of joint and several liability, pursuant to which a defendant is proportionately liable for non-economic (pain and suffering) damages in accord with that defendant's liability for fault, unless the defendant is found to be more than fifty percent at fault in which case that defendant becomes jointly liable for the full award. Defendants may be held jointly and severally liable for economic damages.

The Collateral Source Rule

Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. New York has eliminated the collateral source rule for medical malpractice cases.

The Statute of Limitations for Medical Malpractice in New York

The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In New York, the statute of limitations for medical malpractice cases is two years and six months from the date of injury. For a foreign object left inside a patient's body, the cause of action may be commenced within one year of the date that the presence of the object was or reasonably should have been detected. For malpractice claims by minors, the cause of action may be filed within three years of their eighteenth birthday; however, under the exception for minors, the statute of limitations may not be extended by more than ten years.

Additional Rules for New York Malpractice Cases

Additional rules affecting malpractice litigation in the State of New York include:

Limits on Attorney Fees

New York limits attorney fees in medical malpractice cases to not more than thirty percent of the first $250,000 recovered, not more than 25% of the second $250,000, not more than twenty percent of the next $500,000, not more than fifteen percent of the next $250,000, and not more than ten percent of any recovery in escess of $1,250,000. If the plaintiff's attorney believes that a greater fee is warranted due to the extraordinary circumstances of the case, the attorney may file an affidvavit and petition with the trial court asking for authorization of a greater fee.

Alternative Dispute Resolution

Upon a concession of liability, New York permits any defendant in a malpractice case to demand that the plaintiff elect whether to consent to arbitration of damages. Absent unusual circumstances, the outcome of the arbitration is binding on the parties.

In every dental, medical or podiatric malpractice case the court must hold a mandatory settlement conference within forty-five days after the filing of the note of issue and certificate of readiness, a document that summarizes the status of the case and discovery and whether the matter is ready to proceed to trial. If a party moves to vacate the note of issue and certificate of readiness, the settlement conference must be held within forty-five days of the denial of the motion. If the parties are represented by counsel, the attorneys who appear must have settlement authority or be accompanied by a person who has authority to act on behalf of their client. The court may order the parties, their representatives, representatives of insurance companies, or any other person who has an interest in any settlement to appear at the settlement conference in person or by telephone.

Certificate of Merit Rules

A certificate of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In New York, the complaint filed in a medical malpratice action must be accompanied by a certificate, executed by the attorney for the platiniff, declaring that the attorney has reviewed the facts of the case and has consulted with a qualified expert who has concluded based upon the review and consutation that there is a reasonable basis to commence the action, that the attorney was not able to obtain the consultation prior to filing due to the statute of limitations, or that the attorney was unable to obtain an expert who would perform a review despite having made three separate good faith efforts with qualified professionals to obtain review. If a certificate of merit is not filed at the time of the complaint due to the statute of limitations, the certificate must be filed within ninety days of the service of the complaint.

New York provides several exceptions to the certificate of merit requirement. No certificate of merit is required if the attorney intends to rely solely on a theory of res ipsa loquitur, the position that the harm would not have occurred in the absence of negligence that occurred within the scope of the defendant's control, with the attorney being required to instead file a certificate stating that the case relies solely on that doctrine. No certificate of merit is required from a malpractice plaintiff who is not represented by an attorney. In the alternative to filing a certificate of merit, a plaintiff's attorney may file a timely, statutorily compliant offer to make available for oral deposition all expert witnesses that the plaintiff intends to call at trial.

Why Consult a Medical Malpractice Lawyer

If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Feb 15, 2016.