What should I know about filing a medical malpractice lawsuit in New York?

New York has several laws that govern when a medical malpractice suit can be filed and how an award could be reduced.

According to the National Practitioner Data Bank, there were 21,359 reported medical malpractice payments in New York between 2004 and 2014. These could be the result of a number of incidents, ranging from surgical errors to birth injuries to diagnostic mistakes.

The laws regarding medical negligence lawsuits vary from state to state. New York has set its own guidelines regarding when these must be filed, what must be proven and how a plaintiff could recover damages.

Statute of limitations

New York sets a two-and-a-half year deadline on filing a medical malpractice lawsuit. This means that the victim of negligence must initiate the claim within two and a half years of the incident or from the end of the continuous treatment he or she received from the defendant.

There is the exception of discovery. In some cases, a patient may not be aware of an injury right away. New York law extends the timeframe in these circumstances, but only if there was a foreign body left in the patient's body. Under those circumstances, the patient has a year from the discovery date or from the date that information became available that should have led to the discovery, whichever is first, to file the suit.

Proving medical malpractice

As the Association of the Bar of the City of New York points out, someone alleging medical malpractice will have to prove the following:

  • That the defendant owed a duty of care to the plaintiff
  • That the defendant deviated from a standard of care
  • That the deviation caused the injuries or illness

For example, if a plaintiff alleges that a physician failed to diagnose cancer, he or she will first have to demonstrate that the physician in question was caring for him or her at the time. Then, using expert testimony, the plaintiff will have to show that other similar physicians would have made an accurate diagnosis. Lastly, the plaintiff would have to prove that the mistake caused a worsened condition.

Negligence laws in New York

Any type of personal injury claim in New York is subject to the state's negligence laws, also known as contributory negligence. Under the law, a plaintiff's award could be reduced by the amount of fault he or she had in the incident.

When it comes to medical malpractice, this theory could be brought into play if a plaintiff did not provide an accurate medical history or in some way aggravated the condition. In the above case, if the patient had lung cancer but continued to smoke, a jury could rule that he or she aggravated the condition.

Medical malpractice lawsuits can become quite complicated. Anyone with questions about this issue should consult with a personal injury attorney in New York.