- Our Firm
- Legal Services
- Birth Injuries
- Apgar Scores
- Abnormal Birth
- Cortical Blindness
- Midwife Malpractice
- Preterm Labor Negligence
- Birth Paralysis
- Delivery by Forceps or Vacuum Extraction
- Hypoxic-Ischemic Encephalopathy (HIE)
- Neonatal Hypoxia
- Retinopathy Prematurity
- Brachial Plexus Palsy
- Developmental Delays from Birth Malpractice
- Infant Resuscitation Errors
- Neonatal Therapeutic Hypothermia
- Shoulder Dystocia
- Brain Damage/Head Trauma
- Erb’s Palsy
- Infant Wrongful Death
- NICU Malpractice
- Subgaleal Hemorrhage
- C Section Cases
- Facial Paralysis
- IUGR/Intrauterine Growth Restriction
- Nuchal Cord Malpractice
- Torticollis (Wry Neck)
- Fetal Acidosis
- OB-GYN Malpractice
- Uterine Rupture
- Cephalopelvic Disproportion
- Fetal Distress
- Klumpke’s Palsy
- Periventricular Leukomalacia
- Cerebral Palsy
- Fetal Monitoring Malpractice
- Placental Abruption
- Clavicle Fracture
- Group B Streptococcus
- Meconium Aspiration Syndrome
- Free Consultation
Medical malpractice claims can be incredibly complex. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in New York; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in New York. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.
Suing for Medical Malpractice in New York
In New York, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in New York places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in New York allows the defense of pure comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.
When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. New York, unlike many states, does not place a limit on the monetary amount of damages that may be awarded to a plaintiff in a medical malpractice case.
How long do I have to file a medical malpractice case in New York?
The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in New York mandates that an action for personal injury must be filed within two-and-a-half years from the date the cause of action accrues.  This time limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.
It is important to note that New York law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.”
In New York Medical Malpractice Cases, who is Responsible?
In New York, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed healthcare provider based upon their negligence, misconduct, errors or omissions, or breach of contract in the rendering of healthcare, medical services, nursing services or other health-related services.
Those that can be held responsible due to being included in the definition of a “healthcare provider” include any individual or organization employed or otherwise involved in the provision of health care or treatment. This can include many different types of health care providers, such as doctors, surgeons, specialists, nurses, assisted living facilities, hospice care centers, free clinics, physical therapists, and many others.
When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove:
- The health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances.
- Such failure was a proximate cause of the injury.
What if I am partially to blame? Can I Still Recover Money for New York Medical Malpractice?
New York, along with 12 other states (Alaska, Arizona, California, Florida, Kentucky, Louisiana, Missouri, Mississippi, New Mexico, Rhode Island, South Dakota, and Washington) recognizes the doctrine of pure comparative fault. 
Under the doctrine of pure comparative fault, any award of damages you are awarded from a court are reduced in proportion to your contribution to your own injury. This doctrine is extremely friendly to you in that you are able to recover for damages even if you are found to have been 99% at fault for your injury.
For example, imagine if a patient went to see a doctor about pain in their shoulder. During the evaluation, the doctor asks the patient if they drink alcohol and the patient lies and says that they do not. Based on that information, the doctor prescribed painkillers that are not safe to take in combination with alcohol. The patient later takes the medication while drinking alcohol and suffers severe health consequences. If the patient were to bring a medical malpractice lawsuit against the doctor for improperly prescribing medication that led to their injury, it is likely that a court would find the patient partially responsible and any award of damages would be reduced in proportion to the level of fault calculated by the court as per the doctrine of pure comparative fault.
An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. As a result, the majority of states have adopted a modified system which allows for only a partial apportionment of fault. Usually, the percentage of fault is either capped at 51% or 50%. If the plaintiff contributed to their injury in a way that surpassed the allowed threshold, they will be barred from recovering for their injury.
Are there medical malpractice recovery caps in New York?
If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two main types of damage awards you may receive:
Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.
Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:
- Medical bills
- Prescription fees
- Nursing costs
- Physical therapy costs
- Wages lost from an inability to work
General damages compensate you for occurrences that are hard to properly value. For example:
- Pain and suffering
- Loss of consortium
- Loss of enjoyment of life
- Future medical costs
- Loss of future wages
Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. In New York, punitive damages are permitted when the defendant’s wrongdoing is not simply intentional but evinces a high degree of moral turpitude and demonstrates such wanton dishonesty as to imply a criminal indifference to civil obligations. 
The law in New York is very plaintiff-friendly when it comes to damage awards. The state does not place a recovery limit on damages and is one of just 15 states that have refrained from doing so.
Expert witness reporting and testimony
The testimony given by an expert witness is invaluable to you if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.
Over time, the state of New York has seen numerous medical malpractice claims be filed against healthcare professionals despite the fact that the claims were frivolous and lacked merit. Those cases tied up the court system and caused many sound physicians to lose their practices due to insurance increases. To help remedy this problem, New York has since implemented a requirement that you file, with your original Complaint, or within 90 days of filing, a certificate stating that your attorney has reviewed the facts of the case and has consulted with at least one expert who has concluded on the basis of review and consultation that your claim has merit and deserves to be heard in court. 
The law in New York considers the expert to be qualified if they are licensed to practice medicine within the United States. 
Are some parties immune from medical negligence cases?
The state of New York has waived immunity that would otherwise be provided to its governmental entities such as municipalities and counties.  More specifically, the state of New York waived its immunity from liability and action and assumed liability and has consented to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, as long as the claim is filed within 90 days of occurring.
Settling medical malpractice cases in New York
The law in New York does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation.
Litigating medical negligence cases in New York
A claim for medical malpractice in New York is initiated by filing a summons and complaint or summons.  Once you have filed the pleading and remitted the statutory payment of $190.00, the County Clerk’s office assigns an index number to the proceeding. Once the lawsuit has been properly filed, you have 120 days to perfect service upon all named defendants.
Initiating the Case
If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court.
If your case is valued at less than $25,000, the case must be filed in New York Civil Court. If your case is valued at more than $25,000, the case must be filed in the New York Supreme Court.
In New York, a civil action begins by filing a complaint with the clerk of the court. A complaint should include:
- The proper name of every plaintiff and of every defendant. If a defendant’s name is unknown, a complaint may identify the defendant by a fictitious name, and the complaint may be amended when the defendant’s true name becomes known. This paragraph also applies to defendants in a third-party complaint.
- A short and clear statement of the factual basis of each claim. Each claim must show that the party has a right to relief from the court.
- A demand that the court award money or another type of remedy allowed by law.
A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Upon receipt, the defendants have 30 days to file an Answer which admits and/or denies statements made in the complaint.
Preparing for Litigation
After the disclosures have been made and the complaint, summons and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.
In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.
Each side may obtain discovery by:
- Written interrogatories
- Production of documents
- Physical or mental examinations
- Requests for admission
A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition. In New York, expert witnesses are not usually deposed.
Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.
Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.
Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.
In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.
Litigation can be long, arduous and expensive. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation. However, unlike many other states, the law in New York does not require the use of alternative dispute resolution prior to a lawsuit reaching trial. If both sides wish to utilize alternative dispute resolution methods to attempt a settlement, the law in New York considers such a choice to be the right of an individual and will allow the parties to do so.
During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of New York: a judge or a jury. There are six people on the jury.
To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration via three permissible peremptory challenges. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled. 
In New York, a person is considered to be qualified to be a juror if they are:
- a citizen of the United States;
- a resident of New York
- at least 18 years of age; and
- of sound mind
After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.
From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witnesses will be questioned by the plaintiff’s attorney and then likely cross-examined by the
opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.
Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.
Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.
Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.
Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.
To appeal the decision of a lower court, you must file a Notice of Appeal in the superior court that issued the judgment no later than thirty (30) days from the date of the original judgment. 
How to find the best New York Medical Malpractice Lawyer for your case
Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high-powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.
One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.
When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your time table, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit.
When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.
You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.
Some notable medical malpractice law decisions from New York
These cases represent awards to plaintiffs in medical malpractice cases in New York. These results are in no way a guarantee that subsequent, similar, cases will see the same results.
Galette v. Paul Byrne, Paul R. Byrne, M.D., P.C., Frederic Moon, and Cynthia A. Fretwell
The plaintiff, Stacey Galette, was a patient at the Mineola hospital for laparoscopic removal of an ectopic pregnancy, or a pregnancy outside of the womb. The procedure was performed by Dr. Michelle Quinones, at Winthrop-University Hospital, in Mineola. Gynecologist Dr. Paul Byrne supervised Quinones, who was one of the hospital’s residents.
After the surgery, the plaintiff developed pain in her abdomen. Her hospitalization lasted for two days when she was discharged by Dr. Fredric Moon. The next day, the plaintiff returned to the hospital reporting that her abdomen pain had not subsided. She was examined by Dr. Craig Zebuda and Dr. Cynthia Fretwell. After having consulted Dr. David Halpern, the thought was that the plaintiff was suffering an obstruction of her small intestines and she was readmitted to the hospital. Two days later, doctors determined that the plaintiff was suffering septic shock. Dr. Halpern performed exploratory surgery and discovered a perforation of the plaintiff’s sigmoid colon.
At trial, the plaintiff claimed that the perforation occurred during the salpingectomy that Dr. Quinones performed. The plaintiff was forced to undergo extensive treatment, complications caused her development of gangrene that ultimately led to the amputation of the lower portion of each of her legs.
Galette sued Byrne; Byrne’s practice, Paul R. Byrne M.D. P.C.; Fretwell; Fretwell’s practice, Women’s Contemporary Care Associates P.C.; Halpern; Halpern’s practice, Nassau Surgical Associates, P.C.; Moon; Quinones; Zebuda; and Winthrop-University Hospital.
The lawsuit alleged that Quinones failed to properly perform the salpingectomy; that Byrne failed to properly supervise Quinones; that Fretwell, Halpern, Moon and Zebuda failed to timely diagnose the injury that Quinones caused; that the hospital’s staff failed to timely address deterioration of her condition; and that the failures constituted malpractice.
The jury found that Byrne, Fretwell, Moon and Winthrop-University Hospital’s staff departed from accepted standards of medical care. The hospital was assigned 40 percent of the liability; Byrne was assigned 30 percent of the liability; Fretwell was assigned 20 percent of the liability and Moon was assigned 10 percent of the liability. The jury determined that Galette’s damages totaled $62 million. The in-trial settlement added $2.3 million.
Gonzalez v. Arya, et al.
A plaintiff filed a medical malpractice lawsuit alleging that she contracted Hepatitis C during a routine colonoscopy. Six weeks after her colonoscopy, the plaintiff experienced abdominal pain that was accompanied by nausea and vomiting. She went to the hospital for diagnosis and treatment where she was diagnosed with acute Hepatitis C despite no prior history of Hepatitis C.
It was proven at trial that another patient who had undergone a colonoscopy shortly before her had also contracted Hepatitis C. The belief was that the performing physician was negligent and inadequately cleaned the medical equipment which led to the infections.
The defendants argued that the plaintiff had acquired the Hepatitis C virus prior to the colonoscopy that they had performed, that they had used different medical instruments on the plaintiff than used on the prior Hepatitis C-positive patient, and that they had followed accepted medical practices in the procedure that they had performed on the plaintiff.
The jury agreed with the plaintiff and awarded $5.1 million in damages. The jury determined that the defendant gastroenterologist was 60% responsible and the defendant anesthesiologist was 40% responsible for the plaintiff’s injuries and damages.
 N.Y. C.P.L.R. § 214a
 N.Y. C.P.L.R. § 1411
 Walker v Sheldon, 10 NY2d 401, 405
 N.Y. C.P.L.R. § 3012-a
 N.Y. Ct. Cl. Act § 8
 N.Y. C.P.L.R. § 304
 NY CPLR § 4109
 NY CPLR § 5513