In this article, we'll spotlight a few key New York laws that could come into play in a medical malpractice lawsuit, including the time limits for filing such a case in New York's civil court system, and the "certificate of merit" that must accompany most medical malpractice lawsuits.
All states have very specific deadlines for filing medical malpractice lawsuits, called statutes of limitations, which give victims of medical malpractice a certain amount of time to get a lawsuit filed. In New York, a lawsuit for medical malpractice must be commenced within two years and six months of the alleged malpractice, or, if the health care provider's mistake occurred as part of an "ongoing course of treatment," this 30-month statutory "clock" does not start running until that course of treatment is completed.
The discovery rule is an exception to the standard deadline in situations where the victim could not reasonably have learned that he/she had a viable medical malpractice case. In New York, the discovery rule is more limited than it is in other states. The rule only applies to situations where a foreign object (such as a surgical sponge or instrument) was left in the patient’s body. In those situations, the malpractice lawsuit may be filed within one year of the date of discovery of the foreign object, or within one year of the date of discovery of facts that would reasonably lead to the discovery of the foreign object, whichever occurs earlier.
In New York, the statute of limitations for minor children in medical malpractice cases does not begin running until the child’s eighteenth birthday, with one exception. Regardless of the child’s age when the malpractice occurred, the statute of limitations cannot be extended more than ten years after the alleged malpractice occurred or after a foreign object in the patient’s body was discovered or reasonably should have been discovered.
If you do not file your medical malpractice lawsuit before the statute of limitations deadline has passed, you lose your right to sue the health care provider, unless you fall within one of the exceptions outlined under New York law. For example, the statute of limitations may be extended if the defendant health care provider left the state after committing the malpractice, or if the victim of malpractice was mentally ill or mentally disabled.
The New York statute of limitations for medical malpractice cases can be found at New York Civil Practice Law and Rules section 214-a.
Some states have legislative caps or limits on the amount of damages that can be awarded to a successful medical malpractice claimant. In New York, there are no such caps on the books.
In New York, if you go to trial and are found to be partially liable for your injuries, that finding will reduce your damages award. That's because New York follows a “pure comparative negligence” rule. So, if you are found to bear some amount of fault for your injury, illness, or medical condition (on top of the health care provider's fault) your award of damages is diminished in proportion to your share of blame. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000.
In New York, the plaintiff’s lawyer in a medical malpractice lawsuit must file a written certificate of merit along with the lawsuit (or within 90 days of filing the lawsuit, if compliance with the statute of limitations is an issue). The certificate must state one of two things:
Note that a plaintiff who is representing his or herself (without a lawyer) need not comply with this "certificate of merit" requirement.
All of the details of this rule can be found at New York Civil Practice & Law Rules section 3012-a.