Medical Malpractice FAQs

To have a valid medical malpractice case in New York, you must prove four key elements. First, a doctor-patient relationship existed, establishing a duty of care. Second, your healthcare provider breached the accepted standard of care through misdiagnosis, surgical errors, medication mistakes, or failure to obtain informed consent. Third, this breach directly caused your injury or worsened your condition. Fourth, you suffered actual, measurable harm resulting in economic losses like medical bills and lost wages, or non-economic losses such as pain and suffering.

Critically, New York requires a certificate of merit before pursuing a claim. This document, signed by a qualified medical expert, certifies that your claim has merit based on a deviation from the standard of care. Without this certificate, your case may be dismissed. Consulting an experienced medical malpractice attorney is essential to evaluate whether you meet these requirements.

Several factors influence whether you have a viable medical malpractice case. Medical factors include whether your provider's actions significantly departed from what other competent professionals would have done, clear evidence that the breach caused your injury (not an underlying condition), and the severity of your injury. More serious injuries like permanent disability or death strengthen your claim.

Legal factors matter too. Medical errors in emergencies may be judged differently than errors during planned procedures. Specialists are held to higher standards in their fields. The quality of medical documentation can strengthen or weaken your case.

Practical factors include the defendant's insurance policy limits, the venue where you file (NYC and metropolitan areas typically yield higher settlements than rural counties), and your age (younger patients often receive higher settlements due to longer life expectancies). Most importantly, a qualified medical expert must review your case to determine if the standard of care was breached.

Yes, absolutely. Delayed diagnosis is one of the most common medical malpractice claims in New York. A delayed diagnosis occurs when a correct diagnosis is made only after a significant and harmful delay, allowing a disease to progress to a more serious stage when earlier diagnosis would have provided better treatment options or prognosis.

New York's Lavern's Law provides extended timeframes specifically for cancer misdiagnosis claims. While the standard deadline is 2.5 years from the date of malpractice, Lavern's Law allows 2.5 years from when you discovered or reasonably should have discovered the misdiagnosis, with an absolute maximum of 7 years from the original misdiagnosis date.

To prove delayed diagnosis negligence, you must show that a competent physician would have diagnosed the condition earlier, the delay caused your condition to progress, earlier diagnosis would have resulted in better treatment options, and the delay directly caused harm or worsened your medical condition.

Common medical mistakes that constitute malpractice include misdiagnosis and delayed diagnosis (failure to diagnose cancer, heart disease, or stroke, or misinterpretation of imaging and lab work). Surgical errors such as operating on the wrong body part, leaving instruments inside patients, damaging surrounding organs, or anesthesia errors causing brain damage are also malpractice.

Medication errors account for approximately 25% of all malpractice claims. These include prescribing the wrong medication, administering incorrect dosages, failing to check for allergies, or not warning about dangerous drug interactions.

Treatment and care mistakes include inadequate post-operative care, failure to order indicated diagnostic tests, negligent prenatal care resulting in birth injuries, and hospital-acquired infections. Informed consent violations occur when providers fail to explain risks and benefits, perform treatment beyond what patients consented to, or proceed without adequate explanation of alternatives.

Each of these errors must breach the accepted standard of care and directly cause harm to support a medical malpractice claim.

Yes, absolutely. Signing a consent form does not eliminate your right to pursue a medical malpractice claim. Nobody consents to receive substandard care. A consent form acknowledges that you agree to a procedure being performed with reasonable skill and care, but it is not a waiver of liability for negligent performance.

You can overcome a consent form in three ways. First, if your doctor breached the standard of care, you have a claim. The consent form only covers known and disclosed risks of a procedure performed correctly, not negligent performance. Second, if your doctor exceeded the scope of consent by performing treatment beyond what you authorized, you may have a claim. Third, if your doctor did not actually obtain informed consent by meaningfully explaining the procedure's nature, risks, benefits, and alternatives, the consent may not be valid.

For example, if you signed a consent form for knee surgery but the surgeon negligently damaged a nerve during the procedure, you can still sue because you consented to the surgery, not to negligent performance.

The statute of limitations for medical malpractice in New York is 2 years and 6 months (30 months) from the date of the malpractice or when you discovered it. If you received ongoing treatment for the same condition, the continuous treatment rule means the deadline begins from the date treatment ended, not the initial negligent act.

For cancer misdiagnosis under Lavern's Law, you have 2.5 years from when you discovered or reasonably should have discovered the misdiagnosis, with an absolute maximum of 7 years from the actual misdiagnosis date. Wrongful death claims must be filed within 2 years from the date of death, not the malpractice date.

Government entity claims have much stricter deadlines. You must file a Notice of Claim within 90 days of discovering the malpractice and file a lawsuit within 1 year and 90 days from the malpractice date. Missing these deadlines can permanently bar your claim, so consulting an attorney immediately is critical.

Yes, several important exceptions extend the statute of limitations. The discovery rule applies when you could not reasonably have discovered the malpractice at the time it occurred. The clock begins when you discovered or reasonably should have discovered it, such as when a surgical instrument left inside your body is finally discovered or when symptoms develop gradually.

The continuous treatment doctrine applies if you received ongoing treatment for the same medical condition. The statute of limitations does not start until treatment ends. For example, if a doctor mismanaged your diabetes throughout multiple years of treatment, the deadline begins when you stop seeing that doctor for that condition.

For minors, the statute is tolled until the child turns 18. Claims must be filed by the later of 10 years from the injury or 30 months after the child turns 18 (by age 20.5). If you were mentally incompetent at the time of the malpractice, the statute may be paused until your mental competency is restored, though limits exist to prevent indefinite delays.

Medical malpractice cases in New York typically take 2 to 3 years to resolve, though complex cases may extend beyond 5 years. The initial investigation and expert review phase takes 1 to 3 months, during which medical records are obtained and reviewed and a qualified medical expert is consulted for the certificate of merit.

The certificate of merit must be filed with the complaint or within 90 days after service. Failure to file on time can result in case dismissal. The discovery phase, which is typically the longest and most expensive, lasts 6 to 18 months or more. During this time, both parties exchange evidence, depositions are taken, and expert witnesses provide detailed reports.

Settlement negotiations and mediation last 3 to 12 months, with most cases settling during this phase. If necessary, trial preparation and trial can take 2 to 4 months or more. Factors that extend timelines include multiple defendants, complex medical issues, serious injuries requiring detailed documentation of future care costs, and court backlogs. Most cases settle before trial, making the typical timeline 12 to 24 months from accident to settlement.

First, seek proper medical care from other qualified providers and obtain a second opinion about your condition. Document all symptoms carefully and preserve all medical records related to your condition.

Preserve evidence by requesting and collecting copies of all medical records from the negligent provider, including imaging studies, lab results, pathology reports, and any correspondence. Keep records of all medical expenses and lost wages.

Consult a medical malpractice attorney immediately. Time limits are strict, and evidence can disappear quickly. Attorneys can preserve critical evidence before it's destroyed or lost, and most offer free initial consultations. Document your experience by writing detailed notes about what happened and when, and how the malpractice has affected your health, finances, and quality of life.

Do not share information carelessly. Avoid discussing your case with anyone except your attorney, do not post about it on social media, and do not provide recorded statements to insurance companies or sign any documents without legal review. Do not delay because medical providers may destroy records after certain periods, witnesses may forget details, and expert reviews take time.

The vast majority of medical malpractice cases settle before trial. Approximately 80 to 90% of cases settle without going to trial, with only about 10 to 20% actually proceeding to trial.

Cases settle for several reasons. For plaintiffs, settlement guarantees compensation without trial risk, provides faster resolution (2 to 3 years versus 3 to 5 years for trial), reduces legal costs, and avoids the stress of courtroom testimony. For defendants, settlement avoids unpredictable jury verdicts that often exceed settlement offers, reduces litigation costs, limits exposure to catastrophic verdicts, and provides certainty of outcome.

Early settlements in cases with clear liability may occur within 6 to 12 months. Most settlements happen after discovery and expert reports, typically 12 to 24 months into the case. Even during trial, parties may settle if jury reactions seem unfavorable.

Cases that don't settle typically involve disputed liability or causation, significant disagreement between settlement offers and plaintiff expectations, defense belief they will prevail, or plaintiff determination to vindicate their rights despite delay. The decision to accept a settlement or proceed to trial should be made with your attorney.

No, there are no damage caps in New York medical malpractice cases. This is one of the most important advantages for injured patients in New York. There is no statutory limit on economic damages such as medical bills, lost wages, and future care costs. There is also no statutory limit on non-economic damages like pain and suffering and loss of enjoyment of life. Punitive damages are also not capped, though they are less common.

Many states impose strict caps on damages, with some capping non-economic damages at $250,000 or $500,000. New York imposes no such limitations. This means you can seek full compensation for all your losses, with no artificial limit preventing you from recovering what your injuries are truly worth. Juries are free to award whatever amount they believe is appropriate for your suffering.

While there are no statutory caps, New York courts can reduce jury awards they find excessive under the remittitur process, though this is rare. New York's constitutional prohibition on damage caps ensures that injured patients receive full compensation for their losses.

Medical malpractice case values vary dramatically, but the average settlement in New York is approximately $446,000, substantially higher than the national average of $242,000. Individual cases range significantly based on injury severity. Minor temporary injuries typically settle for $50,000 to $200,000. Moderate injuries with permanent but manageable disability range from $200,000 to $500,000. Severe injuries with significant permanent disability or shortened life expectancy can yield $500,000 to $2,000,000 or more. Catastrophic injuries like brain damage, permanent paralysis, or wrongful death can result in $2,000,000 to $10,000,000 or more.

Factors affecting case value include the severity and permanence of harm, medical treatment required, impact on employment and earning capacity, prognosis and life expectancy, and physical pain and emotional suffering. Economic damages like medical bills, lost wages, and special care needs are calculated precisely. Non-economic damages for pain and suffering, emotional distress, loss of enjoyment of life, and loss of consortium are also considered. Case-related factors include clarity of negligence, quality of medical documentation, venue (NYC yields higher settlements than rural areas), and patient age.

Compensation in medical malpractice cases includes two main categories. Economic damages cover measurable financial losses including past and future medical expenses (hospital bills, surgery costs, medications, therapy, lifelong care), lost wages and diminished earning capacity, and out-of-pocket expenses for medical equipment, home modifications, and special care assistance.

Non-economic damages cover subjective losses and are uncapped in New York. These include pain and suffering from physical pain caused by the injury and necessary treatment, emotional distress like psychological trauma, anxiety, and depression, loss of enjoyment of life from inability to participate in previously enjoyed activities, loss of consortium affecting marriage and family relationships, and disfigurement and scarring from permanent visible effects.

Punitive damages are rare but possible in cases involving intentional misconduct, gross negligence, or willful disregard for patient safety. Juries may award punitive damages to punish the defendant and deter future misconduct. These are not capped in New York.

New York's constitutional prohibition on damage caps ensures that injured patients receive full compensation for their losses without an arbitrary legal limit, allowing you to recover the true value of your suffering and financial losses.

Pain and suffering damages in New York medical malpractice cases are determined by juries based on the subjective impact of the injury on the plaintiff's life, with no fixed formula or limit. Juries consider the nature and severity of injury, including how much physical pain the plaintiff experienced, whether the pain is temporary or chronic, what treatments were required, and how the injury affected daily functioning.

Permanence and prognosis matter significantly. Juries evaluate whether the condition is permanent or will improve with time, the long-term medical outlook, and whether ongoing pain management is required. The impact on daily life is critical, including ability to perform household tasks, work or pursue a career, enjoy previously loved activities, and care for family members.

Emotional and psychological impact includes depression, anxiety, PTSD, emotional trauma from discovering the medical error, and effects on relationships and social connections. Age and life expectancy play a role, with younger people receiving higher awards due to decades of suffering ahead. Credibility and testimony quality matter, as juries assess how convincingly the plaintiff describes their suffering and whether medical records and expert testimony support their claims. Judges instruct juries that awards must be fair and reasonable compensation for the plaintiff's losses.

Yes, but only in limited circumstances. Punitive damages in medical malpractice cases are reserved for situations involving egregious conduct, not ordinary negligence. Punitive damages require evidence of willful or wanton negligence (reckless indifference to patient safety), gross negligence (conduct far exceeding simple negligence with extreme disregard), intentional misconduct (deliberately causing harm), fraud or deceit (falsifying medical records or lying about errors), or malicious conduct (acting with ill will or intent to injure).

Examples of conduct warranting punitive damages include a doctor intentionally disregarding established safety procedures, falsifying or altering medical records to hide errors, operating while impaired by drugs or alcohol, repeated violations of standard protocols despite previous complaints, or sexual misconduct or abuse.

Courts require clear and convincing evidence, a higher standard than ordinary negligence, to award punitive damages. Simple negligence, even if it caused significant harm, typically does not justify punitive damages. Punitive damages are uncommon because they require proving intentional, willful, or egregiously reckless conduct, and juries are reluctant to award damages beyond compensation. When awarded, punitive damages in New York are not capped, with the jury determining the amount based on conduct severity and the defendant's financial means.

Yes, absolutely. Medical malpractice cases require experienced legal representation. Attempting to handle one without an attorney is extremely risky. New York's certificate of merit requirement must be satisfied within 90 days of filing, or your case will be dismissed. Medical terminology and standards of care are highly technical, requiring expert witnesses with appropriate credentials and specialization.

You must prove deviation from accepted medical standards, which requires consulting with qualified medical experts early in the case. Expert selection and coordination is complex and expensive, but your attorney has relationships with experienced medical experts. Hospitals and doctors have powerful insurance companies and experienced defense lawyers. Insurance companies use tactics to minimize payouts or deny responsibility, so an experienced attorney protects your interests and negotiates from strength.

New York requires an attorney to certify, based on expert consultation, that the claim has merit. Without proper certification, your case is dismissed immediately. Self-represented parties cannot obtain a certificate of merit. Experienced malpractice attorneys know how to calculate lifetime care costs and maximize compensation. Studies show represented plaintiffs recover significantly more than unrepresented ones. Attorneys work on contingency, meaning you pay nothing upfront and no fees unless you win.

When selecting a medical malpractice attorney, look for specialization specifically in medical malpractice, not general personal injury, with a significant portion of practice devoted to malpractice cases. The attorney should have deep understanding of New York's certificate of merit requirements and procedures and familiarity with relevant New York Labor and Health Laws.

Experience and track record are critical. Look for significant experience handling cases similar to yours, successful settlements and verdicts in comparable cases, and years of medical malpractice litigation experience. The attorney should have access to qualified medical experts across specialties with established relationships and ability to obtain expert consultations quickly.

Resources and capacity matter. The firm should have ability to advance litigation costs (expert witnesses, depositions, filing fees), adequate staff and resources to handle complex discovery, and not be overly burdened with cases. Communication and client focus are essential. The attorney should communicate clearly and regularly, explain legal processes in understandable terms, respond to questions, treat clients with respect, and provide realistic expectations.

Look for contingency fee arrangements with clear fee percentages and cost advancement terms. The attorney should have trial experience and willingness to take cases to trial if necessary. Location matters, with preference for attorneys familiar with courts in your county.

Nothing upfront. Reputable medical malpractice attorneys work exclusively on a contingency fee basis, meaning you pay only if you win your case. There are no retainer fees or upfront payments required and no hourly charges for attorney time.

The attorney receives a success-based fee, which is a percentage of your settlement or verdict, typically 33% if the case settles before litigation and 40% if the case goes to trial or requires substantial litigation. The law firm advances all litigation expenses including expert witness fees, filing fees, deposition costs, and medical records. These litigation costs are repaid from your settlement or verdict, not from your pocket.

For example, if you receive a $500,000 settlement, the attorney fee would be $165,000 to $200,000 (33% to 40%), court costs and expert fees would be $20,000 to $40,000, and your net recovery would be $260,000 to $315,000. Key advantages include no financial risk if you lose, the attorney only gets paid if you receive compensation, the law firm bears the financial risk and cost of litigation, and all patients can access quality legal representation regardless of income. Your attorney should explain the fee agreement clearly before you sign.

Medical malpractice attorneys in New York are paid exclusively through contingency fee arrangements, not hourly rates or retainers. The attorney receives a percentage of your settlement or verdict only, with typical percentages of 33% for settlements and 40% for trial verdicts. If you lose your case, the attorney receives nothing and absorbs all costs. This aligns the attorney's interests with yours because they only profit if you win.

The law firm advances all litigation expenses upfront, including medical expert consulting fees, expert witness testimony fees (often $5,000 to $15,000 or more per expert), deposition court reporter fees, medical record acquisition and copying, court filing fees, investigation costs, and any other litigation-related expenses. These costs are repaid from your recovery, not from your pocket. If you lose, the firm typically absorbs these costs.

There are no other payment models. Medical malpractice cases do not involve hourly billing, retainer fees, or payment for consultations or initial case review (usually free). Contingency fees ensure patients cannot be denied justice due to inability to pay attorney fees and create incentive for attorneys to thoroughly investigate and zealously advocate. Your contingency fee agreement should specify the exact percentage, what counts as recovery, how costs are advanced and repaid, and how liens and subrogation are handled.

To maximize your initial consultation, bring comprehensive documentation. Medical records and documentation should include complete medical records from all healthcare providers involved, hospital discharge summaries, operative/surgical reports, pathology and laboratory test results, imaging studies and radiology reports, medication lists, nursing notes, and specialist consultation notes.

Bring communication records including copies of any letters or emails from healthcare providers, documentation of conversations about your condition, any written complaints you've filed, correspondence from insurance companies, and medical billing statements. Personal documentation should include your written description of what happened and when, a timeline of symptoms and medical appointments, names of all healthcare providers involved, and insurance information.

Financial documentation includes medical bills and expense receipts, insurance statements, lost wage documentation (pay stubs, employer statements), and documentation of special expenses. Bring evidence of harm such as photographs of injuries, rehabilitation records, documentation of additional surgeries or treatments required, work restrictions, and testimony about impact on daily activities.

Also bring contact information for witnesses and current medical providers, insurance and coverage information including health insurance and workers' compensation details. Prepare by writing a chronological summary of events, listing your questions and concerns, and having medical records organized. Consider bringing a trusted person to help you remember details and take notes.