A Guide to Medical Malpractice Claims in New York

New York Malpractice Lawyer

A Guide to Medical Malpractice Claims in New York



When we seek medical treatment, we assume that our medical providers will treat us with the quality care we need to get better. No one visits their doctor thinking that the doctor will somehow make their condition worse. Sometimes, however, medical professionals do make mistakes. And the physical and financial consequences of those mistakes can have a long-lasting or even permanent impact on your life.

This guide will help you understand what medical malpractice is and how a medical malpractice claim works in New York. You’ll also learn about how to choose the best medical malpractice lawyer for your case.

If you think a medical provider may have caused you harm, contact a medical malpractice attorney right away. There are strict deadlines and other special rules for pursuing a medical malpractice case. An experienced attorney can help make sure you meet all requirements and build the strongest case possible. This will put you in the best position to get the compensation you need to rebuild your life.

What is medical malpractice?

Medical malpractice is when a health care provider (such as a doctor, nurse, dentist, or hospital) fails to meet the appropriate standard of care, and, as a result, the patient is harmed. The proper “standard of care” refers to the generally accepted practices and procedures expected of a professional with similar training and experience under similar circumstances. In other words, the appropriate standard of care is decided by the medical community’s customs and practices. 

In some cases, the error is obvious, like a surgeon operating on the wrong body part. But in many other cases, it’s not easy to determine if you’ve been the victim of medical malpractice without consulting an attorney. A bad outcome or being unhappy with your care doesn’t necessarily mean that your medical provider committed malpractice. If the medical provider met the standard of care that’s generally accepted in the medical community, then you won’t have a claim. Instead, it’s more telling to look for signs like poor management of your condition or evasive answers from your medical providers. 

If you suspect medical malpractice, you should gather your medical records and any other evidence, then consult with an experienced medical malpractice attorney. The attorney will analyze all relevant evidence, and if the facts appear to support a claim, the attorney will engage a medical expert to review your case. If the medical expert agrees that you have a viable claim, then you may be able to pursue a lawsuit. 

The opinion of a medical expert is generally a very important part of pursuing a medical malpractice claim. Expert testimony is usually required to establish:

  • the appropriate standard of care,
  • whether or not the defendant deviated from that standard, 
  • whether or not the deviation caused your injury, and
  • the damages resulting from your injury.

See The role of experts

There are deadlines for filing a medical malpractice claim, so contacting an attorney should be a top priority. If too much time passes, you won’t be able to pursue a claim, even if your medical provider did, in fact, make a harmful mistake. 

Common forms of medical malpractice

Medical malpractice technically covers even the most minor injuries. But in practice, building and litigating a medical malpractice case takes a lot of time, money, and resources. It’s also standard for medical malpractice attorneys to take cases on contingency and advance the costs of the lawsuit. This means they won’t get paid any attorneys’ fees or expense reimbursements unless they win a verdict or settlement. As a result, many attorneys won’t take on a medical malpractice case unless it involves a serious injury or death. 

Still, successful medical malpractice claims can be based on a wide range of medical errors — including actions taken or failures to act. Common examples of medical malpractice include:

  • Errors in prenatal and postpartum care, including inadequate monitoring, failure to diagnose ectopic pregnancy, failure to conduct other appropriate tests, or medication mistakes
  • Birth errors, including those leading to cerebral palsy or Erb’s palsy
  • Misdiagnosis, delayed diagnosis, and failure to diagnose
  • Disregarding patient history, misreading or ignoring lab results or x-rays, or failing to order tests
  • Surgical errors, including operating on the wrong body part, receiving the wrong blood type, poor pre-op or post-op procedures, anesthesia mistakes, substance abuse by medical staff, and unnecessary surgery
  • Radiology and lab errors
  • Failure to treat, admit, or hold for observation, including premature discharge or providing insufficient or poor aftercare
  • Nursing home abuse or neglect
  • Medication mistakes, including prescribing or administering the wrong medicine, dosage errors, mislabeling, and failure to foresee life-threatening medication interactions
  • Dental mistakes
  • Malfunctioning equipment or defective medical devices
  • Facility issues in hospitals, emergency rooms, and clinics, such as poor training, inadequate staffing, sanitation or safety problems, outdated equipment, and procedural mistakes
  • Administrative errors, including patient history omissions, insufficient screening, and poor documentation

Lack of informed consent may also be grounds for a medical malpractice lawsuit. Doctors are required to get your consent before performing a procedure. This means that you must be fully informed about what the treatment involves, including potential risks. If they fail to fully inform you, and you wouldn’t have moved forward with the treatment if you’d known about the risks, then it’s likely malpractice. Valid informed consent requires:

Your doctor must give you adequate information about the procedure, including its purpose, chances of success, risks, alternatives, and cost. You must have enough information about what the procedure involves and the potential results so you can make an informed decision about whether or not to proceed.

You must have the ability to understand and make your own decisions about your health. A patient may not have sufficient capacity if, for example, they have an intellectual disability or mental illness, they’re suffering from extreme stress, or they’re under the influence of drugs or alcohol.

No one can coerce, manipulate, or pressure you into consenting to the treatment. Your consent must be freely given, unless, as noted below, it’s an emergency that requires immediate medical intervention.

Medical providers usually document your informed consent by asking you to sign a consent form with information about your procedure. But it’s still the medical provider’s responsibility to make sure the three requirements above are met before proceeding with a treatment.

In certain emergency situations, informed consent is not required. For example, if you were brought to the emergency room unconscious and your life was in danger, the doctors could give you life-saving treatment without your consent. 

In addition, in the case of children and incapacitated patients, another individual may be appointed to provide consent on their behalf. Generally, however, if a medical provider doesn’t get your informed consent, and you suffer harm as a result, you may have a viable malpractice claim. 

Potential defendants in a medical malpractice case

When people think of medical malpractice cases, they often think of claims against individual doctors. But doctors aren’t the only possible defendants. In New York, you can bring a medical malpractice claim against many types of medical providers (individuals or entities), including:

  • Nurses
  • Anesthesiologists
  • Physical therapists
  • Mental health care professionals
  • Pharmacists
  • Dentists
  • Chiropractors
  • Midwives
  • Lab, x-ray, and other medical technicians
  • Physician assistants 
  • Optometrists 
  • Hospitals, clinics, and outpatient centers
  • HMOs
  • Nursing homes
  • Any person or organization that employs any of the above

The parties legally responsible in your case depends on the type of malpractice, where it occurred, and who was involved. Sometimes, it’s appropriate to name multiple parties. And sometimes, it’s appropriate to only name a medical provider entity as the defendant. That might be the case if, for example, a systemic error caused your injury, rather than the negligence of any individual. 

Naming defendants is an important part of your legal strategy. Your attorney will help you identify the responsible parties in your particular case. 

Stressed woman cancer patient in the hospital.

Case Study: $1.2 million

What makes this case unique: Six other attorneys had turned the client down, her likeness was later used to promote client rights. 

What to do if you think you’re a victim of malpractice

If you suspect medical malpractice, you should take the steps below right away. Immediately taking these steps can help ensure that if you pursue a claim, you’re able to build the strongest case possible.

Many people feel intimidated questioning their doctors. But if something about your treatment or results doesn’t seem right, you have the right to ask your medical provider about it. It can help to have a family member or friend present for support during these conversations. There’s no need to be hostile or threaten to sue them, but asking direct questions may give you a clearer understanding of what happened. If your medical provider gives evasive answers, you should document this. You can also consult with a doctor at another medical facility about your treatment and results. 

Documentation is a big part of building a successful medical malpractice case. If you suspect malpractice, you should write down as much as you can about the events surrounding your treatment. That includes the names of all the parties involved, such as doctors, nurses, witnesses, and administrators. These accounts can help you remember details if you need to explain your situation to a lawyer and file a lawsuit. 

Your medical records will be a key piece of evidence in a medical malpractice lawsuit. By law, your medical provider must give you a copy if you request it. While your attorney can request your records on your behalf, it’s better if you also get them on your own as soon as possible. This is because if your attorney requests them, it may signal to the medical provider that a lawsuit is coming. Unfortunately, sometimes medical providers edit or alter records if there’s a bad result — especially if they think they might get sued. If you get your records soon after the malpractice occurred, your attorney will be better able to identify these kinds of changes. 

Finding an Attorney for Your Case

Medical malpractice cases are complicated and expensive to pursue. Medical professionals are also usually insured, which means that they have aggressive and experienced investigators and attorneys working to defend them. This is why hiring a medical malpractice attorney of your own is so important. 

Your attorney will handle all negotiations and legal procedures on your behalf, so you can focus on your recovery. In particular, your attorney will help:

  • evaluate your case and enlist medical experts to confirm you have a viable claim;
  • gather evidence to support your case, such as medical records and expert testimony;
  • identify all legally responsible parties;
  • establish the potential value of your claim; and
  • navigate complicated court procedures and legal requirements.

When consulting with an attorney for the first time, you should bring any evidence you have with you. This may include your medical records, medical bills, a list of your medical providers, photographs, and correspondence. This will help the lawyer better understand what happened so he or she can evaluate your case. 

During your consultation, the attorney may also take a detailed history of your medical treatment so they can make sure they have all relevant medical records. They’ll then evaluate the evidence. If the facts appear to support a claim, they’ll engage a medical expert to review your case as well. 

If the medical expert also believes you have a viable claim, you may be able to proceed with a lawsuit. This initial investigation can take time — sometimes several months — so the sooner you start the process better, the better. Most medical malpractice attorneys will provide an initial consultation free of charge.

What to look for in an attorney

Your attorney can have a big impact on the success of your case, so you should choose one carefully. Here are a few things to look for when hiring a medical malpractice lawyer:

Medical malpractice cases are complex. The attorney you choose should have experience with similar cases and have a deep understanding of how medical malpractice laws apply to your situation. During your initial consultation, it’s a good idea to ask about the attorney’s specific experience, including how long they’ve been practicing and how many cases they’ve handled. 

You’ll likely have plenty of choices when looking for a medical malpractice attorney. But even among experienced malpractice lawyers, some are able to achieve better results than others. This is why it’s also a good idea to ask for a short list of an attorney’s biggest settlements and verdicts. If an attorney can show a strong record of successful verdicts, that will tell you that they’re not afraid of bringing a case to trial. This is important, because sometimes going to trial is necessary to get fair compensation. 

Preparing and litigating a medical malpractice is time-consuming and expensive. That’s true even if a case settles, and a settlement is never guaranteed. That is why the attorney you choose should have the financial resources and support to handle the case all the way through trial, if needed. They should also have connections with high-quality medical experts. When meeting with an attorney, you can get a sense of their resources by asking about their average expenditures on medical malpractice cases. You can also ask about the most they’ve ever spent to bring a case to verdict.

Dealing with a medical malpractice injury is stressful enough. Having an attorney who doesn’t pay attention to your case can make it even more stressful. An inattentive attorney may also miss crucial details that could affect the outcome of your case. To avoid these kinds of problems, you’ll want to have a sense of how an attorney will respond to you before you hire them. Ask them during the initial consultation how you can communicate with them, as well as how long they’ll typically take to return your messages. 

Hiring an attorney for a medical malpractice case is almost always a worthwhile investment. But you also don’t want to be surprised by unexpected fees. For this reason, when choosing a lawyer, don’t be afraid to ask about their fee structures. Keep in mind that it’s standard for medical malpractice attorneys to take cases on contingency. That means they’ll only get paid if they win money for you, so you won’t have to pay anything up front. 

When choosing a lawyer, you should be wary of any attorney who claims they can get you money fast. While getting compensation quickly sounds great, especially if you’re facing medical bills or you’re unable to work, this may not be in your best interests. 

A lawyer resolving a case quickly does not necessarily mean that the lawyer is good. And a case taking several years, like many malpractice cases do, doesn’t mean that the attorney is bad. In fact, the best way to ensure maximum compensation is to thoroughly prepare and negotiate a case. There are many law firms who don’t take this approach. Instead, they quickly resolve cases for smaller amounts. The smaller amounts are acceptable to the law firms because they can make up the fees by taking on a larger volume of cases. But that only benefits them, and not you, as the client. If you come across a law firm that settles a lot of cases quickly, you should consider it a red flag.

Looking for help selecting the best medical malpractice lawyer in New York?

At Rosenblum Law, we understand the devastating effects medical malpractice can have on your life. We’ll thoroughly evaluate your situation and determine the best course of action for your particular circumstances. If we’re able to take on your case, we’ll guide you through the legal process and fight on your behalf for maximum compensation. 

We also provide guidance for those looking for help selecting the best law firm for their case. We have a large network with dozens of law firms that we have pre-screened to ensure that you will get the best law firm for your specific case.

For a free consultation, call us today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.

Common Concerns About Suing Your Doctor

Pursuing a medical malpractice case is a big decision. Even if you’re struggling physically and financially, you may have other considerations on your mind. Below are a few common concerns patients have when deciding whether or not to sue their doctors.

If you’re having any doubts about pursuing a medical malpractice claim, you should at least consult an experienced medical malpractice attorney. Many attorneys are happy to provide a free initial consultation, and they can help answer your questions and talk through any apprehensions you may have. 

There are strict deadlines for filing a medical malpractice lawsuit, so it’s important to talk to an attorney as soon as possible. If you deliberate too long, you may no longer be able to pursue your claim at all. 

You aren’t the “suing type”

Most people who sue for medical malpractice aren’t the “suing type.” In fact, it may be the only lawsuit they file in their entire lives. And there are many legal requirements for winning a lawsuit, which means that if you haven’t experienced any real harm from a medical mistake, you won’t be able to pursue a medical malpractice case in the first place. See Pursuing a Medical Malpractice Claim

But if a medical provider’s mistake did cause a serious injury, you’re the one who ends up suffering from the physical consequences — not to mention the financial burden. Medical bills can pile up quickly. And if you’re unable to work, or limited in your ability to work, you can lose income well into the future. In these situations, you should not shoulder the burden alone. The person or entity responsible for your injuries should provide appropriate compensation.  

Everyone makes mistakes

It’s true that everyone makes mistakes. But that doesn’t mean they shouldn’t take responsibility for those mistakes, especially if they were avoidable. Pursuing a medical malpractice case is one way to hold your doctor accountable. While an apology is nice, it doesn’t change the impact of your injury on your life. You still have to face the physical, emotional, and financial consequences. 

It’s also very possible that a doctor who didn’t give you the appropriate standard of care also failed to give the appropriate care to other patients — and may continue doing so in the future. Legal action can help ensure that doctors realize the consequences of their errors and make necessary changes so it never happens again. 

You don’t think your injuries are that bad

If your injuries are minor, a medical malpractice lawsuit might not seem to make sense. But people often downplay the seriousness of their injuries because they don’t want to be viewed as complainers. Moreover, some injuries don’t exhibit symptoms until weeks, months, or even years later. 

A medical malpractice attorney can review your records and engage the right medical experts to evaluate your present situation and likely future issues. Even if you initially feel that your injuries aren’t so bad, you could be entitled to compensation for medical expenses, lost wages, and perhaps pain and suffering. If you have an injury that has affected your life physically or financially (or that may affect you in the future), you should seek legal advice before deciding it “isn’t that bad.” 

You like your doctor and don’t want to harm them 

Many people like their doctors — that’s why they chose to work with them. But unfortunately, being a nice person doesn’t mean that he or she didn’t cause real harm to you. And even if your doctor generally provides good care, that also doesn’t mean they didn’t make a serious mistake in your particular instance.  

If your doctor didn’t provide you with the appropriate standard of care, you deserve to be compensated for any resulting harm. And again, by holding your doctor accountable, you may also help keep him or her from injuring other patients in the same way. A medical malpractice lawsuit does not mean the doctor will automatically lose his or her license or go out of business. While the doctor will have to participate in the legal process, he or she will still likely be able to see patients and work as usual. The state medical board may also investigate, and the doctor may face consequences such as censure or mandatory training, but license revocation is rare. It’s usually reserved for only the most extreme cases. Your attorney can help you understand all the potential consequences of filing a claim.

Of course, deciding whether to sue your doctor is entirely up to you. If you want your doctor to continue treating you, then it’s not a good idea to sue him or her. But you should keep in mind that if you don’t pursue a medical malpractice claim before the legal deadlines, you will never be able to get compensation for your injuries. You’ll have to live with the physical and financial effects of your injuries, and your doctor will never have to face the consequences of the error. 

Another thing to remember is that sometimes medical injuries result from systemic errors, and not the mistakes of an individual doctor. In that case, you may not have to sue your doctor as an individual at all. Instead, you would sue the responsible entity, such as the hospital. See Potential defendants in a medical malpractice case. However, it’s difficult to uncover these kinds of “hidden” mistakes on your own. This is another reason to consult an experienced attorney as soon as possible.

You’re worried about the time and money involved with a lawsuit

Medical malpractice lawsuits generally do take years to resolve. But if you’ve suffered a serious injury, it’s worth the wait. You can help the process along by immediately taking the steps outlined in What to do if you think you’re a victim of malpractice. That includes seeking the advice of an attorney. While you will have to participate in the process, your attorney will do the heavy lifting for you and guide you every step of the way.

You also should not have to pay any costs up front. It’s standard for medical malpractice lawyers to take cases on contingency. This means that they won’t get any attorneys’ fees unless they win a settlement or award for you. They’ll also advance any expenses, such as fees for medical experts, obtaining records, and depositions, which will also be reimbursed from any amount they win for you. If a lawyer insists you pay fees up front, you should find a new lawyer. 

You’re concerned about what friends and family will think of you

Fear of looking bad is completely normal. But you also have to keep in mind that the consequences of medical malpractice are deeply personal and affect you in ways that only you know. Your friends and family may be empathetic, but they can never truly understand how the pain and suffering, medical bills, and lost wages are affecting you. Friends and family who have your best interests in mind should understand how important compensation is for you to move on with your life.

Pursuing a Medical Malpractice Lawsuit

If you decide to pursue a lawsuit, your attorney will guide you through the entire process. But having at least a basic understanding of what to expect can help alleviate a lot of stress. It can also help you avoid mistakes that can harm your case, and give you an understanding of what evidence to start collecting. Below is a basic overview of how medical malpractice cases work. 

Statute of limitations 

One of the most important things to know about medical malpractice is that there are strict deadlines for filing a lawsuit. The law that sets this deadline is called the “statute of limitations.”  In New York, the statute of limitations generally only gives you 2½ years from the date of the act, omission, or failure that harmed you to file a medical malpractice lawsuit. This is shorter than other types of personal injury claims, which you can generally file within three years. 

Most states extend the statute of limitations if you don’t discover the malpractice at the time it actually occurred. Unfortunately, in New York, the deadline is only extended under the following circumstances: 

  • If your claim is based on a foreign object discovered in your body, you have one year from the earlier of: (i) the date of the discovery of the foreign object, or (ii) the date you discovered facts that should’ve reasonably led to the discovery of the foreign object.
  • If your claim is based on the negligent failure to diagnose cancer or a malignant tumor, you have 2½ years from the later of: (i) the date you knew or reasonably should’ve known of the error (up to seven years from the negligent act or omission), or (ii) the date of the last treatment if there was continuous treatment for your injury, illness, or condition. 
  • If you were a minor when the malpractice occurred, you have 10 years from the date of malpractice, subject to the extensions above. 
  • If a patient is not sane, the statute of limitations does not run against them. Such patients have 2½ years from the date they’re deemed mentally sound to file a medical malpractice lawsuit.

Other than these circumstances, you likely won’t have longer than 2½ years from the malpractice to file a lawsuit. This means it’s even more critical to pay attention to any pain, discomfort, or feelings that something may not be right during and immediately after your treatment. If you suspect anything is wrong, you should see another doctor right away. And if you suspect you may have been the victim of medical malpractice, contact an attorney immediately. 

Also keep in mind that some types of lawsuits have a shorter statute of limitations. Wrongful death actions, for example, have a statute of limitations of two years from the date of death. 

In addition, if a claim is based on negligence that occurred at a municipal hospital, a Notice of Claim must be filed with the municipality within 90 days and a lawsuit must be started within one year and 90 days. When suing New York State, a Notice of Intention to File Claim must be filed within 90 days and a lawsuit started within 2 years. 

Determining the correct deadline for filing a lawsuit can be complicated. If the statute of limitations passes, your lawsuit will be barred and you won’t be able to recover any compensation. This is why it’s critical to consult an attorney right away. They’ll be able to confirm whether the statute of limitations has lapsed, and if not, how much time you have left to file a lawsuit.

Elements of medical malpractice claim

Another important point to remember is that a medical error alone is not enough to win a medical malpractice case. You actually have to prove four things, called the “elements” of your claim:

You have to prove that the defendant medical provider had a duty to you. Whenever there’s a provider-patient relationship, the provider has a duty to treat the patient with the same skill and care ordinarily used by well-qualified professionals in similar circumstances. Proving this element means that you have to establish that there was a provider-patient relationship. You also have to provide evidence establishing the standard of care. This is often a hotly contested issue. Attorneys on both sides will bring in medical experts to try to establish the standard of care.

You also have to show that the medical provider breached their duty of care. This can be shown through evidence like medical records and testimony from a medical expert with similar qualifications, training, and experience. The question is whether a reasonable person (or entity) in the medical provider’s same circumstances would have acted the same way. Did they do something they shouldn’t have? Or did they fail to do something they should have? If the medical provider behaved unreasonably (or “negligently”), they are legally liable for any injury or harm that resulted.

A breach of duty alone isn’t enough — you also have to show that the breach caused your injury. In other words, you have to prove that if it weren’t for the medical provider’s error, you wouldn’t have been injured in the same way. This is another common point of defense in a lawsuit. Some defendants may argue that even if they did commit an error, your injury was actually caused by something else and would have resulted even without the error.

You must be able to establish the damages you suffered as a result of the error. The compensation you seek may include economic damages, such as medical bills and lost wages. You may also seek non-economic damages, such as pain and suffering.

If your case goes to trial, the judge or jury will decide whether or not the provider committed malpractice and, if so, the amount of damages. If certain legal requirements are not met during the process, the judge may dismiss the case.

In general, only the injured patient can sue for medical malpractice. The exception is if the patient can’t advocate for themselves due to age or incapacity. In that case, a family member may be able to sue on the patient’s behalf. Certain family members may also be able to start a wrongful death lawsuit if a patient dies.

Building a medical malpractice case

For the best chances of winning your case, you and your attorney will need to gather as much evidence of the medical error as possible. Your attorney will thoroughly investigate, but you should also gather as much information as you can as soon as you suspect malpractice. Below is an overview of the types of evidence common in medical malpractice cases.

Medical records

Medical records are a key piece of evidence in a medical malpractice case. Medical records may include, among other documents:

  • Evaluations 
  • Physicians’ notes
  • Test results
  • Radiology images
  • Prescriptions
  • Treatment plans

You have the right to get copies of your medical records. When you request your records, the provider may not charge you a “search” fee. They may only charge a reasonable fee for copying and mailing the documents. They also may not deny your request because you have unpaid bills. You should request these records as soon you suspect malpractice. If you visited multiple medical providers, you may have to make separate requests to each provider.

Other evidence

While your medical records will play a big role in your case, you should collect other information about your treatment as well. This includes the names of medical professionals you interacted with, such as doctors, nurses, technicians, and administrators. Your attorney may interview some of these individuals as part of building your case. 

A timeline and account of events may also be helpful in building your case. Write down as much as you can, including dates of appointments, hospital stays, treatments, or other relevant events. Your attorney can use this information to make sure they’ve thoroughly investigated all aspects of your case and have all the right evidence. 

The role of experts

Medical expert testimony is another critical part of your case. The expert will review your case and testify about the acceptable standard of care, how your medical provider deviated from that standard, and how that deviation caused your injury. See The litigation process below. The defendants will also have their own medical experts testifying on their behalf. These experts must meet certain requirements in terms of specialization in the relevant medical field. 

In certain cases, the error may be so obvious that an expert isn’t needed to testify about the standard of care. But this is rare. An example would be if a surgeon operated on the wrong body part. Even in these cases, an expert medical opinion would be needed to establish the extent of the damages. 

When choosing an attorney, you should look for someone who has access to highly qualified medical experts. Having the right experts on your side can have a big impact on the outcome of your case. The more qualified the expert, the more believable the expert will be to the judge or jury at trial. 

Valuing a medical malpractice case

Valuing a medical malpractice case isn’t an exact science. The amount of compensation you’re able to receive will vary depending on the type of malpractice and your specific injuries. Your attorney, with the help of medical experts, will estimate the appropriate amount to seek in your lawsuit. If the case goes to trial, the judge or jury will decide how much to award based on the evidence and testimony. 

Unlike some other states, New York doesn’t limit how much a person can recover in a medical malpractice lawsuit. You can recover as much in damages as you’re able to prove. In general, the damages in a medical malpractice lawsuit fall into three categories:

Economic damages include compensation for monetary losses relating to your claim. This may include past and future medical expenses, lost wages because you’re unable to work (or limited in the type of work you can do), and other out-of-pocket expenses.

Non-economic damages include compensation for things like pain and suffering, disfigurement, disability, and impairment. Spouses, children, and parents of injured patients may also be able to recover damages for loss of companionship and other benefits of a family relationship that were lost due to the malpractice. These types of damages are more subjective and more difficult to calculate. But generally, when deciding how much to award in non-economic damages, the judge or jury will consider the nature of the injury, its severity, and the impact on your life. 

Punitive damages are reserved for willful or malicious actions. This is rare in medical malpractice cases, as you must show that the medical provider’s actions were intentional, extremely reckless, or fraudulent. The purpose of punitive damages is not to compensate a plaintiff, but to “punish” the defendant for their actions. 

The litigation process

If an attorney and a medical expert agree you have a viable claim, the attorney will decide whether to accept your case. If you do proceed with a lawsuit, below is an overview of what you can expect.

The Complaint is a document that describes the alleged malpractice, your injuries, and the compensation that you’re seeking. Your attorney will prepare and file a Complaint on your behalf, which will officially begin your lawsuit. 

Under New York law, a “Certificate of Merit” must generally accompany the Complaint. This certificate must state that your attorney reviewed your case and consulted with an expert physician, and that on the basis of that review, the attorney believes there are reasonable grounds for starting a medical malpractice case. If you don’t file this certificate, your case may be dismissed. 

A copy of these documents must also be delivered (or “served”) to the defendant, along with an official notice of the lawsuit called a “Summons.” 

Once the defendant receives the Complaint, they’ll have to file an official response called an “Answer.” In their Answer, they’ll admit or deny the allegations in the Complaint. The Answer will also include any defenses and counterclaims. 

Within 60 days of the service of the Answer, your attorney must also file a Notice of Medical Malpractice Action. 

After the Complaint and Answer are both filed, the discovery process will begin. During discovery, both sides will gather documents, information, and other evidence to build their cases and arguments. They’ll also engage expert medical witnesses and schedule “depositions” with various parties. Depositions are sworn, out-of-court testimonies in the form of question-and-answer sessions with the attorneys. If requested by the defendant, you may have to undergo an Independent Medical Examination (“IME”) as well. The IME is conducted by a doctor chosen and paid for by the defendant. The purpose is not to provide treatment or care, but to gather information about your injuries and condition that can be used in the lawsuit. 

Throughout the process, attorneys may make various requests to the court called “motions.” Examples include motions to dismiss (throw out the case because of a legal deficiency), compel discovery (order the other side to respond to a discovery request), or change venue (move the case to a court in another location).

If the parties don’t reach a settlement agreement, after discovery the case will proceed to trial. However, a settlement can still be reached any time before the judge or jury makes a decision. During the trial, both attorneys will give opening statements, present all evidence, call witnesses (including medical experts), and conclude their cases with closing arguments. The judge or jury will then decide who wins the case and the amount of damages, if any (called the “verdict”).

Once the trial is over, the losing side may decide to “appeal” to a higher court. An appeal is basically asking the higher court to review the actions of the trial court and make sure the law was properly applied. If you win an appeal, it’s possible to reverse the decision of the trial court. 

The amount of time it takes to go through the litigation process varies from case to case. It will depend on how complicated your case is, how busy the court is, and how willing the parties are to cooperate and negotiate. In general, however, preparing a medical malpractice case and going through the entire trial process can take several years. 

The comparative negligence rule

When pursuing a medical malpractice lawsuit, you should keep in mind that New York allows the defense of pure comparative negligence. This means that if the judge or jury finds that you’re partially at fault for your injuries, your damages will be reduced in proportion to your percentage of fault.

For example, if your doctor was negligent in setting a broken bone, but you also engaged in heavy lifting against the doctor’s orders, a jury could find that both the doctor’s negligence and your actions contributed to the bone not healing properly. If the jury finds that you were 10% at fault, the doctor was 90% at fault, and the damages are $100,000, then you would recover only $90,000. 

Settlements and mediation

Throughout the legal process, your attorney will negotiate with the defendant’s attorney to resolve the case out of court. This is called a “settlement.” 

Parties to a lawsuit usually prefer to settle, because it helps avoid the lengthy, expensive, and uncertain trial process. But medical malpractice cases go to trial more often than other types of personal injury cases. This is likely because if there’s a settlement or judgment payment by a doctor’s insurer or employer, it must be reported to the federal National Practitioner Data Bank. In other words, the malpractice settlement will go on the doctor’s record. 

Doctors who want to avoid having a malpractice settlement on their record will aggressively defend the case. Many malpractice insurance policies give doctors the right to go to trial if they wish. The doctor can refuse to give his or her consent to a settlement, even if their insurer would prefer to settle the case. This is why it’s important to have an attorney who’s not only good at negotiating, but who is also willing and prepared to go to trial if necessary. 

Still, settlement negotiations will be a part of just about every medical malpractice case. A settlement may be reached through direct negotiations. The parties may also agree to mediation. Mediation is a proceeding where a neutral third-party, called the mediator, helps the plaintiff and defendant reach a settlement. Mediators are often retired judges, attorneys, or other court personnel. 

There are no set rules for a mediation. Instead, it’s usually guided by the mediator’s own style and method. The mediator will listen to both sides and make sure everyone gets a chance to tell their story and ask questions. The idea is that this process will help both sides come to an understanding and fair compromise. Of course, sometimes that isn’t possible. If you can’t reach a compromise through mediation, you can still proceed with your case in court. 

While you may want to get compensation quickly, it’s best not to rush settlement negotiations. In general, the faster you settle, the lower the settlement amount. Fast settlements are typically for an amount much less than your case is truly worth. 

It’s also important to never accept a settlement offer until you’ve consulted with an attorney. You need a skilled negotiator on your side to get the best possible outcome. Your attorney will review your medical records and engage the right experts to confirm a fair value for your case. If you can’t reach a fair settlement, your attorney should be willing to go to trial. 

Frequently Asked Questions

If you suspect you or a loved one has been the victim of medical malpractice, you likely have a lot of questions about your case. Below are answers to some common questions we receive about medical malpractice in New York. But keep in mind that every case is different. If you’d like to discuss the specifics of your case, you should contact a New York medical malpractice attorney.


How do I know if I have a medical malpractice case?

It’s usually difficult to know if you have a viable medical malpractice claim without consulting an attorney. An attorney will first have to establish that the statute of limitations hasn’t passed. He or she will then review all your medical records and other evidence to determine whether the facts support a claim.

If the evidence appears to support a claim, the attorney will engage a medical expert to review your case as well. You’ll only be able to proceed with your claim if the medical expert agrees that the facts support a case and agrees to give an opinion on the medical provider’s conduct. See Pursuing a Medical Malpractice Lawsuit for more information about building a medical malpractice case.

How much is my medical malpractice case worth?

Every medical malpractice case is different, so there’s no “standard” amount of compensation that you can get. How much you can receive will depend on the nature of the error, the resulting injuries, and the impact of the injuries on your life. Your attorney will work with medical experts to determine how much to seek, but compensation may include:

economic damages, such as medical expenses, lost wages, and other out-of-pocket expenses; and

non-economic damages, such as compensation for pain and suffering, impairment, or disability.

In extreme cases, you may also be able to recover punitive damages. To better understand how much your claim is worth, you should consult with an attorney. See Valuing a medical malpractice case.

How much will it cost me to bring a medical malpractice lawsuit?

Medical malpractice attorneys will typically offer an initial consultation free of charge. It’s also standard for attorneys to take medical malpractice cases on a contingency basis. This means that they won’t get paid up front. Instead, their attorneys’ fees will come out of any money they win for you in a verdict or settlement. New York law currently limits the percentage of attorneys’ fees in a contingency arrangement as follows:

30% of the first $250,000;
25% of the next $250,000;
20% of the next $500,000;
15% of the next $250,000;
10% of any amount over $1.25 million.

Medical malpractice attorneys usually advance litigation expenses as well, such as fees for depositions, copying records, and engaging experts. These expenses will also be reimbursed from any verdict or settlement. 

Will I have to go to court?

It’s possible. Medical malpractice cases settle less often than other types of personal injury cases. This is because the defendant-physician usually must agree to a settlement, even if their insurance company wants to settle. Many doctors prefer to aggressively defend cases, because settlements for malpractice will go on their record. If they win at trial, they can avoid having any indication of malpractice on their record.

If your case does go to trial, you’ll have to appear in court. Throughout the litigation process, you’ll also have to attend other proceedings, such as negotiations, depositions, and medical examinations. Your attorney will guide you through the entire process. 

How long will a medical malpractice case take?

Every case is different, so there’s no set time frame for resolving a case. But in general, it can take a few years, though it’s possible for the case to settle much earlier.

The first step is consulting with an attorney. If your attorney thinks you may have a claim, they’ll investigate further and also engage a medical expert to review your case. If the attorney and medical expert agree that you have a viable claim, you can proceed with filing your case. At this point, the lawsuit officially starts. The attorneys will begin to negotiate, and there will be a period of discovery and motions. If the parties don’t reach a settlement during this time, the case will go to trial.

This process can take a lot of time. How long your case takes will depend on the complexity of the case, the strength of the evidence, and how busy the court is. The cooperation of the defendants and their insurer in negotiating a settlement will also affect the timeline. 

Should I take a settlement offer?

You should not accept any settlement offer without consulting with an attorney first. Your attorney will review your case and engage the right medical experts to determine a fair amount of compensation for your case.

Insurance companies will try to settle for the least amount possible. Many settlement offers, especially early in the process, are much less than your case is actually worth. It takes a skilled negotiator who’s familiar with insurance companies to reach a fair settlement. And sometimes, it may not be possible to reach a fair settlement at all. In that case, you’ll need an attorney who’s prepared to go to trial. Whenever you’re presented with a settlement offer, your attorney will be able to advise you on the best path forward.

How does medical malpractice settlement mediation work?

If both parties want to resolve a claim out of court, they may agree to mediation. Mediation is a proceeding where a neutral third-party, called the mediator, helps the plaintiff and defendant reach a settlement. Mediators are often retired judges, attorneys, or other court personnel.

There are no set rules for a mediation. Instead, it’s usually guided by the mediator’s own style and method. The mediator will listen to both sides and make sure everyone gets a chance to tell their story and ask questions. The idea is that this process will help both sides come to an understanding and fair compromise. Of course, sometimes that isn’t possible. If you can’t reach a compromise through mediation, you can still proceed with your case in court.

Will my case or settlement become publicized in the media?

Lawsuit records will generally become part of the public record. That includes your filings and the rulings in the case. While not every case will be picked up by the media, it is possible. Settling out of court, however, allows you to keep many sensitive details and the settlement amount private. Your attorneys can also draft the settlement agreement in a way that obligates the parties to keep the details confidential.

What should I do if a loved one died as a result of medical malpractice?

If you believe your loved one died as a result of medical malpractice, you should contact an experienced medical malpractice attorney right away to evaluate your case. You may be able to bring a wrongful death action. Keep in mind that preparing a wrongful death lawsuit requires a great deal of investigation, and there are deadlines for filing your action. This means you should take action as soon as possible.

What if I have other questions about medical malpractice?

If you have other questions about a potential medical malpractice case, you should contact a lawyer right away. As noted above, there’s a time limit for filing a claim. If you wait too long, it may be too late to file a lawsuit. 

At Rosenblum Law, we understand the devastating effects medical malpractice can have on your life. We’ll thoroughly evaluate your situation and determine the best course of action for your particular circumstances. If we’re able to take on your case, we’ll guide you through the legal process and fight on your behalf for maximum compensation.

For a free consultation, call us today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.


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