Understanding Medical Malpractice in New York
Medical malpractice occurs when a healthcare provider fails to deliver care that meets the accepted standards of the medical profession, resulting in patient injury, illness, or worsening of a condition. In New York, these cases are governed by specific laws and procedures that patients must understand to protect their rights.
According to New York legal precedent, medical malpractice is essentially negligence committed by a doctor or healthcare provider. When a medical professional departs from accepted medical practice and a patient suffers injury or death as a result of that deviation, the provider can be held legally liable for their actions.
Key Insight: A bad medical outcome does not automatically equal malpractice. The treatment and decisions made by the provider must be evaluated against what an average doctor would do in that same situation. If the provider’s actions mirror standard medical practice, there may be no grounds for a malpractice claim even if the result was unfavorable.
The Four Essential Elements to Prove Medical Malpractice
To successfully pursue a medical malpractice case in New York, you must establish four critical elements. Each component must be proven for your claim to proceed.
1. Doctor-Patient Relationship (Duty of Care)
A doctor-patient relationship must exist, which is defined as a patient knowingly and willingly seeking specific medical professionals or organizations for treatment, and those professionals knowingly and willingly accepting the patient. Under this framework, the professional or organization becomes responsible for the patient’s well-being.
This element is typically straightforward to prove through medical records, billing statements, appointment documentation, and treatment notes showing that you were under the care of the healthcare provider in question.
2. Breach of Standard of Care (Negligence)
Proving negligence is often the most important and most difficult aspect of a medical malpractice case. In determining whether a medical caregiver or facility was negligent, their behavior or decisions are judged against what is called a “standard of care.”
The standard of care is determined by asking the hypothetical question: “Was the medical care provided for the patient the same as what would be provided by a reasonably competent medical professional or facility under the same circumstances?”
Expert Witness Requirement: New York law requires expert opinion testimony to prove that a medical provider’s actions constituted a breach of the applicable standard of care. This means you must have a medical expert willing to testify that the healthcare provider was negligent in their care. The expert must provide evidence that the breach directly caused your injuries.
3. Causation
You must demonstrate that because of the negligence proven in the prior element, you were injured or suffered harm that would likely not have occurred if the negligence hadn’t happened.
If a caregiver or medical facility was negligent, but the negligence was not responsible for your injury or death—such as when harm resulted from an underlying medical condition—then there is no basis for medical malpractice. The deviation from standard care must be the direct cause of your damages.
4. Damages
You must have suffered actual damages as a result of the medical negligence. Damages in New York medical malpractice cases can be both economic and non-economic:
- Economic damages: Quantifiable expenses including out-of-pocket medical bills, lost wages, loss of future earning capacity, costs of ongoing medical care, rehabilitation expenses, and medical equipment costs
- Non-economic damages: Emotional trauma, pain and suffering, physical disfigurement, permanent injury or disability, loss of quality of life, and loss of consortium
New York’s Statute of Limitations for Medical Malpractice
Understanding the statute of limitations is crucial because missing the filing deadline will forever bar you from pursuing your claim, regardless of how strong your case may be.
General Rule: 30-Month Deadline
New York’s standard statute of limitations for medical, dental, or podiatric malpractice is two years and six months (30 months) from the date of the alleged malpractice or from the end of continuous treatment by the party you plan to sue for alleged negligence.
Continuous Treatment Doctrine
If you were receiving ongoing treatment from a physician or medical provider for the same condition, the 30-month statute of limitations clock will not start running until the date at which “continuous treatment” stopped. This doctrine recognizes that patients may not immediately recognize malpractice when they’re still under the care of the same provider.
Date of Discovery Limitation
Unlike many other states, New York has a very restrictive discovery rule. The statute generally runs from the date of the alleged malpractice, not from when you discovered the injury. However, important exceptions exist for specific circumstances described below.
Critical Exceptions to the Standard Deadline
New York law provides several important exceptions that can extend or modify the standard 30-month filing deadline:
Foreign Objects Left in the Body
When a foreign object (such as a surgical sponge, instrument, or medical device) was left in a patient’s body—usually because of a surgical mistake—the statute of limitations is one year from the date that object was or should have been discovered by the patient.
Lavern’s Law: Cancer Misdiagnosis Cases
One of the most significant recent changes to New York medical malpractice law is Lavern’s Law, enacted in 2018. Named after Lavern Wilkinson, a Brooklyn woman who tragically died from a curable form of lung cancer after doctors failed to inform her of a suspicious mass on her chest X-ray, this law specifically addresses cancer misdiagnosis cases.
Under Lavern’s Law, claims involving a failure to diagnose cancer or a malignant tumor can be filed within two and a half years from when the patient knew or reasonably should have known of the negligent failure to diagnose cancer, or from the last treatment date of continuous treatment for the condition—whichever is later.
Important Limitation: Even with Lavern’s Law, claims cannot be filed more than seven years after the original act of negligence. This creates an absolute deadline that cannot be extended regardless of when the cancer was discovered.
As of 2025, recent case law continues to clarify how Lavern’s Law applies in practice. Courts have examined this 2018 amendment to CPLR § 214-a to determine the timeliness of medical malpractice lawsuits involving undiagnosed cancer claims. However, it’s important to note that Lavern’s Law applies only to cancer victims, as lawmakers chose not to extend this discovery rule to other types of misdiagnosis.
Medical Malpractice Involving Minors
When a minor child is injured due to medical malpractice, special rules apply. The child has three years from their eighteenth birthday to file a medical malpractice claim. However, the negligent action or omission in question must have occurred within the previous 10 years.
This means that regardless of the child’s age when the malpractice occurred, the statute of limitations cannot be extended more than 10 years after the alleged malpractice took place.
Wrongful Death Cases
If the alleged negligent act or omission results in wrongful death, the family of the decedent has two years from the date of the person’s death to file a wrongful death claim—not from the date of the alleged malpractice.
Mental Incapacity Exception
New York law does not hold a statute of limitations against a person who is not legally sane. The two-and-a-half-year statute begins on the date that person is considered legally well and capable of pursuing legal action.
Government Healthcare Facilities (Municipal Hospitals)
If you receive treatment at a municipal hospital or another government-owned healthcare facility, you face an even shorter time period with a two-stage process:
- Notice of Claim: You or your attorney has only 90 days from the date of injury to file a Notice of Claim with the defending facility and the government entity responsible for handling legal matters
- Lawsuit Filing: Even after filing the Notice of Claim, you must still file your actual lawsuit within 12 months of your injury
This dramatically shortened timeline makes it especially critical to consult with an attorney immediately if your medical malpractice occurred at a city, county, or state-run hospital or health facility.
| Situation | Statute of Limitations | Key Details |
|---|---|---|
| Standard Medical Malpractice | 30 months (2.5 years) | From date of malpractice or end of continuous treatment |
| Foreign Object Left in Body | 1 year | From date of discovery or when it should have been discovered |
| Cancer Misdiagnosis (Lavern’s Law) | 30 months | From discovery, but no more than 7 years from malpractice |
| Minors | 3 years after 18th birthday | Maximum of 10 years from date of malpractice |
| Wrongful Death | 2 years | From date of death, not date of malpractice |
| Municipal/Government Facilities | 12 months | After filing Notice of Claim within 90 days of injury |
Certificate of Merit Requirement
To file a medical malpractice lawsuit under New York Civil Practice Law and Rules, Section 3012-a, the plaintiff must attach a Certificate of Merit. This certificate serves as a preliminary screening mechanism designed to prevent frivolous lawsuits.
The Certificate of Merit affirms that:
- The attorney for the plaintiff has consulted with an expert physician
- As a result of that consultation, the expert physician has opined that there is a reasonable ground for the commencement of a medical malpractice lawsuit
- The expert believes the claim is meritorious
This requirement means you cannot simply file a medical malpractice lawsuit on your own suspicion that something went wrong. You must have already consulted with a qualified medical expert who agrees that the standard of care was violated before your attorney can ethically file your case.
Damage Awards in New York: No Caps
One of the most patient-friendly aspects of New York medical malpractice law is the absence of damage caps. Many states have enacted tort reform legislation that places limits on how much compensation a successful medical malpractice plaintiff can receive. New York has no such caps.
New York is one of 17 states that has not enacted any kind of tort reform policy which caps economic damage payouts. This means plaintiffs can seek full compensation for both economic and non-economic damages without statutory limitations.
Real-World Impact: For example, birth injury damages may amount to more than $10 million in New York state because injuries that lead to cerebral palsy cause a lifetime of pain and suffering, extensive medical care, and lost earning potential. Without damage caps, juries are free to award compensation that truly reflects the full extent of a patient’s lifetime damages.
However, it’s important to note that proposed legislation (NY Senate Bill 2025-S1608) has been introduced that would cap non-economic damage awards in negligence actions at $250,000. As of 2025, this proposal has not been enacted into law, but it represents ongoing efforts by some legislators to limit medical malpractice awards.
Comparative Negligence in Medical Malpractice Cases
New York follows a “pure comparative negligence” rule. This means that even if you share some responsibility for your injuries, you can still recover damages—but your award will be reduced in proportion to your percentage of fault.
For example:
- If a jury awards you $500,000 but determines you were 20% at fault (perhaps for not following post-operative instructions), your award would be reduced to $400,000
- If you were 50% at fault, your damages award would be reduced by 50%
- Even if you were 99% at fault, you could still recover 1% of your damages
This is different from “modified comparative negligence” states where if you’re 50% or more at fault, you recover nothing. New York’s pure comparative negligence rule is generally considered more favorable to plaintiffs.
Attorney Fee Limitations in Medical Malpractice Cases
Unlike most personal injury cases in New York where attorneys can charge a standard contingency fee (typically 33%), medical malpractice cases are subject to special fee restrictions under New York Judiciary Law Section 474-a.
This sliding scale cap on attorney contingency fees has been in place since 1985. Prior to that year, medical malpractice lawyers customarily charged a contingency fee equal to one-third of the recovery. However, as a result of extensive lobbying by the medical industry designed to reduce medical malpractice litigation, the contingency fees have been restricted to the following sliding scale:
First $250,000
30% of the first $250,000 of the sum recovered
Next $250,000
25% of the next $250,000 of the sum recovered
Next $500,000
20% of the next $500,000 of the sum recovered
Next $250,000
15% of the next $250,000 of the sum recovered
Over $1.25 Million
10% of any amount over $1,250,000 of the sum recovered
These percentages are computed on the net sum recovered after deducting expenses and disbursements for expert testimony, investigative services, and other costs properly chargeable to the enforcement of the claim. In computing the fee, costs as taxed, including interest upon a judgment, are deemed part of the amount recovered.
Fee Example: If your medical malpractice case results in a $1 million settlement, your attorney’s fee would be calculated as: 30% of first $250K ($75,000) + 25% of next $250K ($62,500) + 20% of next $500K ($100,000) = $237,500 total attorney fee, or approximately 23.75% of the total recovery. This is significantly less than the 33% fee ($330,000) that would apply in a standard personal injury case.
Common Types of Medical Malpractice in New York
Medical malpractice can take many forms. Some of the most common types of cases in New York include:
Surgical Errors
Surgical mistakes can include wrong-site surgeries (operating on the wrong body part or wrong patient), anesthesia mistakes that cause brain damage or death, leaving surgical instruments or sponges inside the patient’s body, performing the wrong procedure, or damaging organs or nerves during surgery.
Diagnostic Errors
Failure to diagnose or misdiagnosis of serious conditions can have devastating consequences. Common examples include failing to diagnose cancer or malignant tumors, misdiagnosing heart attacks or strokes, failing to order appropriate diagnostic tests, or misreading imaging studies like X-rays, MRIs, or CT scans.
Medication Errors
These cases involve prescribing the wrong medication, prescribing the correct medication but failing to notice the patient’s allergies or contraindications in their medical records, incorrect dosage amounts, failing to warn of dangerous drug interactions, or pharmacy errors in dispensing medications.
Birth Injuries
Medical negligence during pregnancy, labor, or delivery can result in catastrophic injuries to both mother and child, including cerebral palsy from oxygen deprivation, Erb’s palsy from brachial plexus injuries, brain injuries from prolonged labor, failure to perform timely cesarean sections, or maternal injuries during delivery.
Failure to Obtain Informed Consent
Doctors are required to advise you of the material risks associated with any procedure so you can give informed consent to having the procedure done. When the doctor does not provide adequate information, and a risk associated with the procedure occurs, you may have grounds for a malpractice claim if you can show that you would not have undergone the procedure had you known the risks.
Who Can Be Sued for Medical Malpractice in New York
A medical malpractice claim can be brought against a wide range of healthcare providers and facilities, including:
- Individual Physicians: General practice physicians, internists, OB/GYNs, radiologists, surgeons, anesthesiologists, emergency room doctors, specialists of all types
- Other Healthcare Providers: Podiatrists, dentists, nurses, physician’s assistants, nurse practitioners, physical therapists, chiropractors
- Healthcare Facilities: Hospitals (private and municipal), nursing homes, rehabilitation facilities, outpatient surgery centers, medical clinics, urgent care centers
In many cases, both the individual healthcare provider and the facility where the malpractice occurred can be named as defendants in the lawsuit under theories of direct negligence or vicarious liability.
The Reality of Medical Malpractice Litigation
While New York law provides strong protections for victims of medical malpractice, it’s important to understand that these cases are challenging to win. Statistics show that:
- Only about 7% of medical malpractice cases filed end up going to trial
- Of the 7% that make it to trial, approximately 80% are ruled in favor of the defendants (the healthcare providers)
- This means medical malpractice cases are difficult battles that require strong evidence, expert testimony, and experienced legal representation
The complexity and expense of medical malpractice litigation is precisely why the Certificate of Merit requirement and attorney fee restrictions exist—to ensure that only meritorious cases with strong evidence proceed to litigation.
Important Distinctions: Medical Malpractice vs. Ordinary Negligence
New York courts have drawn important distinctions between claims that sound in medical malpractice versus those that sound in ordinary negligence. A claim involves medical malpractice when it concerns the exercise of professional medical judgment or skills, whereas a claim sounds in ordinary negligence when the alleged conduct can be evaluated based on common, everyday experience.
For example:
- Medical Malpractice: A surgeon’s decision about which surgical technique to use, or a radiologist’s interpretation of an X-ray, requires specialized medical knowledge and would be evaluated as medical malpractice
- Ordinary Negligence: A wet floor in a hospital corridor that causes a patient to slip and fall doesn’t require medical expertise to evaluate and would be considered ordinary negligence
This distinction matters because medical malpractice claims are subject to the stricter requirements discussed in this article (Certificate of Merit, expert testimony, shortened statutes of limitations, attorney fee caps), while ordinary negligence claims follow standard personal injury rules.
Frequently Asked Questions About New York Medical Malpractice Laws
How long do I have to file a medical malpractice lawsuit in New York?
The general statute of limitations for medical malpractice in New York is two years and six months (30 months) from the date of the alleged malpractice or from the end of continuous treatment for the same condition. However, important exceptions exist for foreign objects (one year from discovery), cancer misdiagnosis under Lavern’s Law (30 months from discovery, up to 7 years maximum), minors (three years after their 18th birthday, with a 10-year maximum), and municipal hospitals (90 days to file Notice of Claim, then 12 months to file lawsuit).
What do I need to prove to win a medical malpractice case in New York?
You must prove four essential elements: (1) A doctor-patient relationship existed, establishing a duty of care; (2) The healthcare provider breached the accepted standard of care (negligence); (3) The breach directly caused your injury (causation); and (4) You suffered actual damages (economic and/or non-economic). New York law requires expert medical testimony to prove both the standard of care and that it was violated.
Are there caps on damages in New York medical malpractice cases?
No, New York does not cap damages in medical malpractice cases. Unlike many other states that have enacted tort reform limiting compensation, New York allows plaintiffs to seek full compensation for both economic and non-economic damages without statutory limitations. This means juries are free to award damages that truly reflect the full extent of a patient’s lifetime injuries and losses.
What is the Certificate of Merit requirement?
Under New York Civil Practice Law and Rules Section 3012-a, you must attach a Certificate of Merit when filing a medical malpractice lawsuit. This certificate affirms that your attorney has consulted with an expert physician who opined that there is reasonable ground for the lawsuit and that the claim is meritorious. This requirement prevents frivolous lawsuits and ensures that a qualified medical expert agrees the standard of care was violated before the case proceeds.
How much will my medical malpractice attorney charge?
Unlike standard personal injury cases where attorneys typically charge 33% on a contingency basis, New York Judiciary Law Section 474-a places a sliding scale cap on medical malpractice attorney fees: 30% of the first $250,000; 25% of the next $250,000; 20% of the next $500,000; 15% of the next $250,000; and 10% of amounts over $1.25 million. These percentages are calculated on the net recovery after deducting case expenses.
What is Lavern’s Law and how does it affect my case?
Lavern’s Law, enacted in 2018, is a special exception to the statute of limitations that applies specifically to cancer misdiagnosis cases. It allows patients to file claims within 30 months from when they knew or reasonably should have known of the failure to diagnose cancer, rather than from the date of the malpractice itself. However, claims still cannot be filed more than seven years after the original act of negligence. This law is named after Lavern Wilkinson, who died from lung cancer that doctors failed to diagnose in time.
Can I still recover damages if I was partially at fault for my injuries?
Yes. New York follows a “pure comparative negligence” rule, which means you can still recover damages even if you share some responsibility for your injuries. However, your award will be reduced in proportion to your percentage of fault. For example, if you’re found to be 30% at fault, your damages award will be reduced by 30%. This is more favorable than some states where being 50% or more at fault bars you from any recovery.
What is the continuous treatment doctrine?
The continuous treatment doctrine provides that if you were receiving ongoing treatment from the same physician or medical provider for the same illness, injury, or condition, the 30-month statute of limitations does not begin running until the date at which continuous treatment stopped. This recognizes that patients may not immediately recognize malpractice when they’re still under the care of the provider who committed it, and that the trust inherent in an ongoing doctor-patient relationship may prevent patients from investigating potential claims.
How is medical malpractice different from a bad medical outcome?
A bad medical outcome does not automatically equal malpractice. Medicine is not an exact science, and even the most skilled doctors cannot guarantee positive results in every case. Medical malpractice occurs only when the treatment and decisions made by the provider fall below what an average reasonably competent doctor would do in that same situation. If the provider’s actions mirror standard medical practice, there is no malpractice even if the result was unfavorable.
What if my malpractice occurred at a government hospital?
If your medical malpractice occurred at a municipal, county, city, or state hospital, you face significantly shorter deadlines. You must file a Notice of Claim within 90 days of your injury, and then file your actual lawsuit within 12 months of your injury. This dramatically shortened timeline makes it especially critical to consult with an attorney immediately if you suspect malpractice at a government-run facility.
Next Steps if You Suspect Medical Malpractice
If you believe you or a loved one has been the victim of medical malpractice in New York, time is of the essence. Given the strict statutes of limitations and the complex requirements for these cases, you should:
- Preserve all medical records: Request copies of all medical records, test results, imaging studies, and billing statements related to your care
- Document everything: Keep a detailed journal of your symptoms, treatments, conversations with healthcare providers, and how the injury has impacted your life
- Avoid discussing your case: Don’t discuss your potential claim with the healthcare provider, their insurance company, or on social media
- Consult with a qualified attorney immediately: Medical malpractice cases require specialized legal knowledge and access to medical experts. An experienced attorney can evaluate whether you have a viable claim and ensure all deadlines are met
- Act quickly: With statutes of limitations as short as 90 days for municipal hospitals and generally 30 months for standard cases, every day matters
Important Note: This website is an educational resource connecting brain injury victims with qualified New York attorneys. We are not a law firm and do not provide legal advice. The information provided here is for educational purposes only and should not be considered legal advice for any specific case. For advice about your particular situation, consult with a qualified New York medical malpractice attorney.
New York’s medical malpractice laws are designed to balance the rights of injured patients with protections against frivolous litigation. Understanding these laws is the first step in protecting your rights and pursuing the compensation you deserve if you’ve been the victim of medical negligence.
