A medical malpractice case can be more complicated than other kinds of civil lawsuits (especially when compared with other injury-related legal claims, such as those stemming from a car accident). And this isn't only because of the complex mix of the medical and legal issues inherent in these kinds of lawsuits. You'll need to understand the strict filing deadline that applies to your situation and follow some procedural rules unique to this type of case. Medical malpractice cases are notoriously difficult to win—and you'll almost certainly need the help of a good medical malpractice attorney to guide you through the process—but it can be helpful to understand the basics of New York's laws before you decide whether to file a claim. Read on for the details.
New York's Medical Malpractice Statute of Limitations
In New York (just as in any state), if you think you have a medical malpractice claim, one of your first concerns needs to be making sure you comply with the statute of limitations. This is a state law that sets a firm time limit on a plaintiff’s right to file a lawsuit in civil court. The statute of limitations differs depending on the kind of case you want to file in New York, but the deadlines are very strict (more on the consequences of missing the deadline below.)
New York, like many other states, has passed a specific statute of limitations that applies to medical malpractice lawsuits. It can be found in New York Civil Practice Law and Rules, section 214-a. Under this rule, you have up to 30 months (or two and a half years) to file your lawsuit, starting from the date of the health care provider's alleged medical error. If that error happened as part of an "ongoing course of treatment," the 30-month statutory "clock" does not start running until the date of the last treatment.
There are a few situations that extend the time for filing a medical malpractice lawsuit in New York. For two examples:
- If the alleged malpractice was a medical provider's negligent failure to diagnose cancer or a malignant tumor, you have up to 30 months to file suit after the later of when you knew or should reasonably have known that you were injured as a result of such a failure (but no later than seven years after the missed diagnosis), or the last treatment in an ongoing course of treatment.
- If you were harmed because a foreign object (such as a surgical sponge or instrument) was left inside your body after a procedure, you have up to one year to file your lawsuit after you were able to discover the existence of that error, or you learned facts that should have led to that discovery.
But if no exception applies to extend the filing deadline, and you've missed the 30-month window set by New York law, you've also missed your chance to have the court hear your case, which means you're left without a remedy for any medical malpractice that might have occurred. That's obviously a harsh result, especially if you've suffered significant harm due to a serious medical error. But it's an illustration of just how important it is to understand and comply with the statute of limitations.
Keep in mind that compliance with the statute of limitations just means getting the initial paperwork filed with the court and sent to the defendants. In New York, that paperwork includes a certificate from your attorney about the merits of your case. (More on that, below). However, that doesn't mean that you need to have your case fully prepared and ready to go to trial by the filing deadline. In some situations, if the statute of limitations deadline is approaching, and your lawyer firmly believes in your case after reviewing it and consulting with an expert, the attorney will file the lawsuit to make sure your rights and options are preserved, while the two sides discuss settling the medical malpractice case out of court.
The "Certificate of Merit" Requirement in New York Medical Malpractice Cases
In New York, the person filing a medical malpractice lawsuit (the plaintiff) needs to comply with special procedural rules. These safeguards have been put in place as part of so-called "tort reform" efforts to deter the filing of non-meritorious (or downright frivolous) claims against health care providers—claims that can drive up the price of health care system wide. In New York, the most daunting of these requirements is in New York Civil Practice Law & Rules section 3012-a.
Rule 3012-a states that, in any lawsuit alleging injury caused by medical malpractice, along with the initial complaint (that's the document that starts the lawsuit and lays out the plaintiff's claims), the plaintiff's attorney must file a certificate declaring that he or she:
- has reviewed the case and consulted with at least one health care expert (usually a physician) who is licensed to practice (in New York or elsewhere)
- "reasonably believes" the expert is knowledgeable as to the medical issues relevant to the plaintiff's claims, and
- has concluded, based on this review of the case and the consultation with the expert, that there is a "reasonable basis" for the lawsuit.
If the attorney is unable to obtain the required consultation with an expert in time to meet New York's deadline for filing the lawsuit, the lawyer may file the certificate within 90 days after the complaint is served on the defendant health care provider.
If the attorney is unable to comply with the consultation requirement after making three separate "good faith" attempts with three different physicians, because none would agree to the consultation, the attorney must declare so in the certificate that accompanies the complaint.
A few more notes on Rule 3012-a:
- Regardless of how many defendants are named in the medical malpractice lawsuit, only one certificate needs to be prepared and filed.
- If the attorney is relying on a liability argument known as res ipsa loquitur, a Latin term that basically translates as "the thing speaks for itself," the attorney must state so in the declaration. An example of res ipsa loquitur in a medical malpractice case is when a medical instrument is left in a patient after a procedure. In other words, this fact in and of itself means that someone was negligent, so there's no need for an expert's opinion on the issue.
- If the plaintiff is not represented by an attorney, the requirement for the certificate does not apply. The plaintiff only needs to file the complaint itself.
No Caps on Damages In New York Medical Malpractice Cases
Some states have passed laws that limit the amount of compensation successful plaintiffs can be awarded in medical malpractice cases. New York, however, has no statutory cap on medical malpractice damages.
In most states that have imposed such caps, the limits apply only to the category of noneconomic damages. Noneconomic damages can include compensation for the more subjective losses associated with the malpractice, such as pain and suffering, mental anguish, and loss of enjoyment of life.
On the other hand, even in states with damages caps, there are often no limits on awards of economic damages. Economic damages can include money for the more quantifiable effects of a health care provider’s negligence, including compensation for medical treatment (past and future), lost earnings (past and future), and loss of earning capacity.
In New York, though, there is no limit on the amount of damages—economic or noneconomic—a plaintiff can seek or be awarded in a medical malpractice case.
Getting Help With Your New York Medical Malpractice Claim
If you're close to the 30-month deadline for filing a medical malpractice lawsuit in New York, or ready to file a certificate of merit, it's time to turn your case over to an experienced medical malpractice lawyer. A good attorney will no doubt be well-versed in the state's rules and will have the experience and skills to anticipate and navigate them.