New York Medical Malpractice Lawyer

Healthcare providers in New York assume a professional duty of care whenever they treat a patient. While most medical professionals strive to offer competent, compassionate care, mistakes still occur—sometimes with devastating results. In such circumstances, medical malpractice law holds practitioners accountable when they fail to meet recognized standards. Because malpractice litigation is notoriously complex, requiring detailed investigations and expert testimony, these laws serve to compensate injured individuals, deter future negligence, and safeguard the integrity of the healthcare system. Victims often experience severe emotional and financial burdens, including overwhelming medical bills and lost wages, making it crucial to understand one’s legal rights and options early. Experienced New York medical malpractice lawyers can help assess potential medical malpractice claims, craft solid legal strategies, and seek remedies for injuries caused by preventable errors. From examining medical records to consulting with qualified specialists, they manage every phase of the legal process, allowing those harmed to focus on healing and recovery.

What Is Medical Malpractice in New York?

Medical malpractice is a specific type of negligence in which a healthcare provider departs from the recognized standard of care, causing injury or death to a patient. Under New York law, proving malpractice requires establishing four key elements:

1. Duty: A patient-provider relationship existed, giving rise to a professional duty of care.
2. Breach: The provider failed to deliver care in accordance with recognized medical standards—a standard often described as the level of skill and care that a reasonably prudent practitioner in the same specialty would provide under similar circumstances.
3. Causation: The provider’s breach of duty caused or substantially contributed to the patient’s injury.
4. Damages: The patient suffered verifiable harm, such as pain and suffering, medical expenses, lost wages, or other losses.

Providers can include physicians, nurses, hospitals, pharmacists, and other entities that owe a duty to patients. To succeed in a claim, the plaintiff usually relies on expert medical witnesses who explain how the provider’s conduct deviated from acceptable standards and how that deviation caused the patient’s injuries.

For example, in Toth v. Community Hospital, 22 N.Y.2d 255 (N.Y. 1968), the Court of Appeals of New York reaffirmed that physicians must exercise “reasonable and ordinary care, skill, and diligence” consistent with the standards of the medical community. Although the facts involved a child patient who allegedly suffered harm due to improper medical treatment, the broader principle applies to all medical malpractice claims: simply showing an unfavorable outcome is not enough. Instead, courts look for evidence that the provider deviated from what a similarly trained and prudent doctor in the same field would do under comparable circumstances—and that this deviation directly led to the patient’s injury.

It’s important to note that not every negative medical result qualifies as malpractice. Even the best doctors may not always be able to prevent complications or unfortunate outcomes. The question is whether the provider’s actions fell below a recognized standard of care, not whether a better result could have been achieved with hindsight.

Common indicators of a possible medical malpractice claim include persistent or unexplained complications following a routine procedure, significantly differing opinions from multiple medical professionals, inadequate disclosure of risks (or lack of informed consent), and situations where key diagnostic tests were never performed or were overlooked. If you suspect your injury resulted from a healthcare provider’s mistake, consulting an experienced New York medical malpractice lawyer is a prudent step. A thorough investigation—reviewing medical records and consulting with qualified experts—can help determine whether a valid claim exists.

What Are the Most Common Types of Medical Malpractice?

Medical malpractice claims in New York arise in various situations. They can involve many forms of care, treatment, or medical decision-making. Common categories include the following:

Misdiagnosis or Delayed Diagnosis. Misdiagnosis occurs when a healthcare provider assigns the wrong condition to a patient, potentially leading to ineffective or harmful treatment. A delayed diagnosis happens when a practitioner fails to recognize or diagnose a condition within a reasonable timeframe, which can allow the illness to progress or worsen. In assessing liability for these errors, courts examine whether another similarly trained provider would have identified the condition sooner or arrived at the correct diagnosis under similar circumstances. In Nykorchuck v. Henriques (78 N.Y.2d 255), the Court of Appeals focused on how timing and thoroughness in evaluating a patient’s symptoms can be decisive. The decision highlighted that plaintiffs must show not only that a provider’s diagnostic process deviated from accepted standards, but also that this delay or misdiagnosis directly caused the patient’s harm. When physicians neglect to order appropriate tests, ignore clinical signs, or fail to refer a patient to a specialist, they risk liability if those omissions lead to demonstrable injury.

Lack of Informed Consent. Under New York Public Health Law § 2805-d, healthcare professionals must explain to patients the reasonably foreseeable risks, benefits, and alternatives of a proposed treatment. Liability for lack of informed consent may arise if a patient was not adequately informed of the material risks and either would have declined or chosen a different course of treatment had those risks been disclosed. Crucially, the patient must also show an injury that was caused by undergoing a procedure without sufficient information. Courts often rely on expert testimony to determine what a “reasonably prudent person” in similar circumstances would have done if properly informed.

Medication Errors. Medication errors can arise in prescribing, dispensing, or administering a drug. These include prescribing the wrong medication, ignoring known allergies, providing incorrect dosage instructions, or mislabeling prescriptions at the pharmacy. Courts look for a direct link between the provider’s error and the patient’s injury, focusing on whether the deviation from standard prescribing or dispensing practices was a substantial factor in causing harm. When investigating these claims, experts typically examine medical records, dosage protocols, and pharmacy logs to determine how the error occurred.

In Rodriguez v. New York City Health & Hosps. Corp., 50 A.D.3d 464 (1st Dep’t 2008), the plaintiff alleged that her consent for breast reduction surgery was invalid because she had difficulty reading English and was not properly informed of the risks and alternatives. She claimed that the defendant surgeon failed to disclose the potential for hypertrophic scarring and did not discuss alternative treatment options.

Under New York Public Health Law § 2805-d, a plaintiff must establish that the physician failed to disclose material risks, benefits, and alternatives and that a reasonable person would not have undergone the procedure if fully informed. Merely stating that she did not understand the discussions with her doctor was not enough, as plaintiffs must show, through objective evidence, that the physician’s disclosures were qualitatively insufficient. The court found that she failed to prove that a reasonable person in her position would have refused the procedure if fully informed, resulting in dismissal of her claim.

This case illustrates why working with an experienced New York medical malpractice lawyer is critical, as they can secure testimony from qualified experts who understand the medical standards, language barriers, and other nuances that determine whether disclosures were legally sufficient.

Surgical Errors. Surgical errors can occur in a variety of ways, such as operating on the wrong site, cutting or damaging nearby organs, leaving instruments inside a patient, or failing to address known complications. Because these mistakes can lead to severe harm or long-term injury, patients often allege lack of informed consent in addition to malpractice, relying on Public Health Law § 2805-d, which requires disclosure of foreseeable risks, benefits, and alternatives. Potential defendants range from the surgeon, anesthesiologist, and nurses to the hospital itself if inadequate oversight or faulty policies contribute to the error.

Birth-Related Injuries. Birth-related injuries occur when obstetric negligence during prenatal care, labor, or delivery leads to serious harm for the mother or child. Common issues include a provider’s failure to monitor fetal distress, the misuse of delivery instruments, and the improper handling of complications. Courts examine whether a doctor or nurse adhered to recognized obstetric standards, focusing on whether a reasonably competent professional would have taken the same course of action under similar circumstances. In brachial plexus injury claims, for example, excessive traction on the baby’s shoulder during delivery may give rise to liability.

Anesthesia Errors. Anesthesia negligence can occur when an anesthesiologist administers the wrong dosage, fails to review a patient’s medical history for potential interactions or allergies, or neglects to properly monitor vital signs during a procedure. Even slight deviations from standard anesthesia protocols may lead to serious complications such as low blood pressure, organ damage, or hypoxia-induced brain injuries. Because these risks can be catastrophic, anesthesiologists are held to high professional standards before, during, and after administering anesthesia.

Under New York law, an anesthesiologist must exercise reasonable care consistent with what a similarly trained specialist would provide under the same or similar circumstances. This includes conducting a thorough pre-anesthesia evaluation—reviewing the patient’s history, allergies, and current medications—carefully administering the appropriate drugs, and continuously monitoring the patient’s oxygen levels, heart rate, and blood pressure. A breach of these duties that causes measurable harm may result in a valid malpractice claim.

Hospital or Facility Negligence. Hospitals, clinics, and outpatient centers may be liable if their administrative practices are insufficient or if there are failures related to hiring, training, or staffing. They can also be held responsible under principles of vicarious liability if an employee’s negligence occurs within the scope of that individual’s employment. Additionally, inadequate recordkeeping or failure to properly supervise staff can give rise to liability for the facility.

For example, in Bing v. Thunig, 2 N.Y.2d 656 (1957), the New York Court of Appeals clarified when a hospital can be held liable for medical malpractice. The plaintiff suffered severe burns during surgery when an electric cautery ignited flammable antiseptic left on the operating table sheets by hospital-employed nurses. The hospital argued that it was not responsible under the Schloendorff (Schloendorff v. New York Hospital, 211 N.Y. 125 (N.Y. 1914)) rule, which previously exempted hospitals from liability for medical staff negligence unless the act was deemed “administrative” rather than “medical.”

The New York Court of Appeals rejected this distinction and ruled that hospitals should be held accountable under the doctrine of respondeat superior, just like any other employer. The court found that the nurses’ failure to remove contaminated sheets constituted negligence, and since they were hospital employees acting within their duties, the hospital could be sued for malpractice.

This decision eliminated a longstanding legal exemption for hospitals, making them responsible for the actions of their employees, whether administrative or medical. If a patient is harmed due to hospital staff negligence, the hospital itself can be sued for malpractice.

These categories can overlap in a single claim. Lawsuits can allege multiple failures, including misdiagnosis, lack of informed consent, and hospital negligence. Each claim requires proof of a recognized standard of care, a deviation from that standard, and injury linked to that deviation. When these elements are shown, courts in New York can award damages to the injured party.

Can I Sue for a Medical Malpractice Injury?

In New York, an individual may file suit for a medical malpractice injury if certain elements are met:

1. Professional Duty of Care. A medical provider must have a duty to the patient. This arises from a treatment relationship, such as when a physician agrees to care for a patient. Without this relationship, no malpractice claim can be sustained.
2. Failure to Follow Recognized Procedures or Standards. The plaintiff must show that the provider departed from recognized standards. Courts compare the care delivered to care that a similarly trained provider would deliver under the same circumstances. Public Health Law 2805-d offers details about this requirement.
3. Injury Caused by the Failure. It is not enough to show a departure from recognized standards. There must be a direct link between the provider’s failure and the patient’s injury. Courts assess whether the patient would have avoided harm but for the negligence. Experts often testify on the issue of causation.
4. Damages. The plaintiff must show harm. This can include pain, medical costs, lost income, or other losses. If there is no harm, there is no viable malpractice claim.

Who Can I Sue for Medical Malpractice Injuries?

Medical malpractice lawsuits in New York can be brought against various parties, depending on the facts. Potential defendants include:

• Physicians. A physician who treats a patient under an established doctor-patient relationship may be named in a lawsuit if that physician’s actions or omissions cause harm. This includes general practitioners, surgeons, specialists, and others who deliver care. In Toth v. Community Hospital, the New York Court of Appeals held that a physician must exercise the level of skill and diligence commonly possessed by members of the profession, underscoring that failure to do so can amount to actionable negligence.
• Hospitals. Hospitals can be liable for negligence by their employees, such as nurses, technicians, or residents under supervision. A hospital can also be liable for administrative policies, hiring, or training practices if those practices lead to patient harm. In Bing v. Thunig, the Court of Appeals recognized that hospitals owe a duty of care to patients and can be held responsible under respondeat superior for negligent acts committed by staff acting within the scope of employment.
• Nurses and Other Staff. Nurses, physician assistants, technicians, or other workers may be named if they deviated from recognized responsibilities. In practice, these claims may also implicate the supervising physician or facility through vicarious liability.
• Pharmacists and Pharmacies. If a pharmacist dispenses an incorrect medication or fails to clarify ambiguous instructions, liability can arise. Pharmacies can be named in some cases if policies or record-keeping procedures cause errors.
• Specialized Care Providers. Dentists, psychiatrists, podiatrists, and other specialized providers can face claims if they fail to meet recognized standards. Public Health Law § 2805-d does not limit malpractice theories to only physicians.
• Manufacturers of Medical Devices or Products. If a product used in treatment is defective, there can be liability for the manufacturer under product liability principles. This is not always a malpractice claim, but it can be joined if the defective product contributed to the injury.

Individuals filing suit usually name all parties who may share responsibility. During litigation, factual investigation can pinpoint the persons or entities that contributed to the harm. The process may include depositions, document requests, and expert reviews.

How Long Do I Have to File a Medical Malpractice Lawsuit?

Filing a medical malpractice lawsuit in New York requires awareness of specific deadlines, known as statutes of limitations. Missing these deadlines can mean forfeiting your right to seek compensation, regardless of the strength of your claim.

General Statute of Limitations. Under CPLR 214-a, the standard time limit for filing a medical malpractice lawsuit in New York is two years and six months from the date of the alleged malpractice, or from the end of continuous treatment by the same provider for the same condition. This rule serves to balance the interests of both patients and medical professionals by preventing indefinite liability but allowing injured patients a reasonable period to assert their rights. If you fail to file within this timeframe, the court will likely dismiss your case for being untimely.

Continuous Treatment Doctrine. The continuous treatment doctrine can extend the deadline if you continued to receive care from the same provider for the condition at issue. In such cases, the clock does not start running until the treatment relationship ends. This doctrine recognizes that it may be unfair to force a patient to file a lawsuit while still relying on the same doctor or facility to correct the problem.

In Borgia v. City of New York, 12 N.Y.2d 151 (N.Y. 1962), the New York Court of Appeals clarified that the clock for filing a medical malpractice claim starts at the end of a continuous course of treatment for the same condition, rather than on the date of the negligent act. The plaintiff, a child, suffered brain damage due to alleged malpractice while hospitalized, and the city argued that notice was untimely because it was not filed within 90 days of the last negligent act. Rejecting this view, the court adopted the “end of continuous treatment” doctrine, reasoning that it would be unfair and counterproductive to force an injured patient to sue a provider while still undergoing corrective care for the very harm caused. The court stressed that this rule only applies when the treatment is for the same or related condition, thus preventing an indefinite extension and ensuring fairness to both patients and medical providers.

Foreign Object Rule. When a surgical instrument, sponge, or other foreign object is inadvertently left in a patient’s body, New York law provides a special exception. A patient who discovers such a foreign object often has one year from the date of discovery (or from the date the object should have been discovered) to bring a claim.

In Flanagan v. Mt. Eden Gen. Hosp, 24 N.Y.2d 427, 301 N.Y.S.2d 23 (N.Y. 1969), surgical clamps were left inside the plaintiff’s body during a 1958 gallbladder operation. Eight years later, doctors discovered and removed the clamps, prompting the plaintiff to file a medical malpractice action. Ordinarily, New York’s statute of limitations for malpractice ran from the date of the negligent act. However, the Court of Appeals recognized that when a foreign object is left in a patient’s body—unlike general misdiagnoses or treatment errors—the action does not “accrue” until the patient could reasonably have discovered the object. This “discovery rule” is grounded in fairness: a retained clamp or sponge retains its identity, making fraudulent or frivolous claims far less likely. Moreover, a patient often cannot detect such an object until it causes pain or other symptoms. Consequently, the court held that in foreign object cases, the statute of limitations is tolled until discovery, rather than from the date of surgery.

Minors and Wrongful Death Claims. If the injured patient is a minor, the statute of limitations may be tolled (paused) until the child reaches the age of 18, although there is usually an outside cap—often 10 years from the date of malpractice. This ensures that children, who cannot bring claims on their own, do not lose their rights simply because of their age. In instances of wrongful death caused by medical malpractice, EPTL § 5-4.1 applies, giving the personal representative of the estate two years from the date of death to file a lawsuit. However, if a survival action for conscious pain and suffering is also involved, the medical malpractice statute of limitations interplay can be more complex.

Determining the correct deadline to file a medical malpractice lawsuit requires a thorough review of the facts, medical records, and treatment timelines. Even a seemingly simple case can involve overlapping rules, especially if there are questions about continuous treatment or if the alleged malpractice took place over multiple visits. Consulting with an experienced New York medical malpractice lawyer is critical to protect your rights and avoid missing critical filing deadlines. A timely and well-prepared claim can help ensure your opportunity to seek compensation for medical expenses, lost wages, pain and suffering, and other related damages.

What Compensation Can Medical Malpractice Victims Receive?

A successful medical malpractice claim in New York can result in monetary recovery for various losses. Compensation often includes:

• Medical Expenses. This includes hospital bills, physician visits, rehabilitation, prescription drugs, and other expenses. Plaintiffs can recover for past expenses already incurred and anticipated costs. Courts review evidence of current and future needs.
• Lost Wages and Earning Capacity. A plaintiff can seek damages for lost income if an injury prevented work. Damages can also include projections of future loss if the injury reduces earning ability. Expert economists may calculate present values of future losses.
• Pain and Suffering. Damages can include compensation for physical discomfort or other forms of personal suffering. Courts apply subjective analysis. In McDougald v. Garber, 73 N.Y.2d 246 (N.Y. 1989), the Court of Appeals discussed evaluating non-economic losses in a medical malpractice claim. The plaintiff fell into a permanent comatose condition, and the jury awarded substantial non-economic damages for both pain and suffering and loss of enjoyment of life. On appeal, the Court clarified that pain and suffering damages require at least some cognitive awareness. Without awareness of one’s condition or the harm endured, compensation for pain or emotional distress does not serve a compensatory purpose. The Court also concluded that loss of enjoyment of life should not be treated as a separate category from pain and suffering, as it traditionally falls under the broader umbrella of non-economic damages. If these categories are split, double recovery for the same harm is likely. Instead, juries should consider the impact of the entire spectrum of intangible injuries together. By requiring a threshold level of perception, the Court aimed to ensure that awards in medical malpractice cases truly address the injuries suffered.
• Loss of Consortium. In some situations, a spouse may bring a derivative claim for loss of marital support or companionship. This depends on the legal relationship and the extent of the impact.
• Wrongful Death Damages. If malpractice leads to death, the personal representative may bring a wrongful death action under EPTL Section 5-4.1. Damages can include funeral expenses, financial support for dependents, and related losses. New York law focuses on pecuniary losses rather than non-economic loss in wrongful death actions.
• Punitive Damages. Courts in New York rarely award punitive damages in malpractice claims. Punitive damages appear only when conduct involves high-level misconduct.

To recover damages, plaintiffs must show clear evidence of losses. Medical bills, income documentation, and expert opinions about future needs can be presented. In contested cases, defense counsel may introduce alternative calculations or dispute the plaintiff’s claims regarding lost earnings or severity of harm.

Will My Settlement Be Reduced Because My Insurance Paid Some of My Bills?

New York’s Collateral Source Rule, codified in CPLR § 4545, allows courts to reduce a damages award if the plaintiff has already received certain benefits (such as health insurance payments) that cover the same expenses. In such situations, the defense can request a hearing to determine how much, if any, of the verdict should be offset.

In Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d 81 (1995), the New York Court of Appeals examined CPLR 4545(c), which governs whether an injured plaintiff’s settlement can be reduced by payments received from insurance or other “collateral sources.” The key takeaway is that any reduction applies only when the collateral source payment corresponds to the same category of economic loss for which the jury awarded damages. For example, if an insurance plan covers your hospital bills, those amounts may reduce the portion of your settlement allocated for medical expenses, but not other damages such as lost wages. The court emphasized that allowing a broader offset—subtracting all insurance proceeds from the total award—would unfairly reward defendants by reducing damages beyond what the specific category of loss requires. Thus, under CPLR 4545(c), your settlement can indeed be reduced if your insurance covered particular costs or expenses that overlap with your damages. However, defendants must prove that the collateral payments actually substitute for that specific category of awarded loss.

Frequently Asked Questions (FAQs)

Q. Can my medical malpractice case settle without going to trial?

A. Most medical malpractice claims settle before reaching trial, often through negotiations or mediation. However, if the defendant or insurance carrier refuses to offer a fair settlement, your medical malpractice attorney serving New York may recommend proceeding to trial to seek the full extent of damages owed.

Q. Is there a cap on damages for medical malpractice in New York?

A. Unlike some other states, New York does not impose a general cap on economic or non-economic damages in medical malpractice cases. However, the courts closely scrutinize large jury awards to ensure they are not excessive in light of the evidence. If a damages award is deemed too high, it may be reduced upon review.

Q. How is pain and suffering calculated in a malpractice case?

A. Pain and suffering damages can be subjective, as they compensate for physical and emotional distress rather than tangible financial losses. Juries typically consider the severity, duration, and impact of the injuries, as well as expert testimony and other relevant evidence. New York courts will often look at comparable verdicts and settlements to gauge whether a particular award is appropriate.

Q. What if the doctor eventually corrected the mistake?

A. Even if the doctor later corrected the original error, a viable malpractice claim can still exist if the initial negligence caused harm. Courts will examine whether the delay in correction worsened the patient’s condition or created additional expenses or complications. Corrective measures may mitigate damages but do not necessarily eliminate liability for the period in which the negligent conduct caused injury.

Q. Can I sue a public hospital or government-run healthcare facility?

A. Yes. However, claims against public hospitals or government entities involve additional procedural requirements, such as filing a Notice of Claim within a strict timeframe. Failing to comply with these steps can bar your right to recover. Consulting an attorney early is crucial to ensure compliance with all notice requirements.

Q. What happens if the healthcare provider does not have malpractice insurance?

A. While most hospitals and doctors maintain malpractice insurance, some providers may be uninsured or underinsured. If a provider lacks sufficient coverage, you can still pursue a judgment, but collecting the full amount of damages may be more difficult. An experienced attorney can help identify all potential defendants and explore avenues for recovery, including the possibility of a personal judgment against the negligent provider.

Q. What is a Certificate of Merit and why is it required?

A. Under New York’s Civil Practice Law and Rules (CPLR) § 3012-a, a plaintiff’s attorney in a medical malpractice case must file a Certificate of Merit. This document affirms that the attorney has reviewed the facts of the case, consulted with at least one qualified medical expert, and concluded there is a reasonable basis to proceed. If an attorney fails to comply with this requirement, the lawsuit may be dismissed.

Q. Does signing a consent form mean I cannot sue for malpractice?

A. Signing a general consent form does not waive all liability on the part of a healthcare provider. While informed consent is important, a provider can still be held liable if their care falls below accepted standards or if they fail to disclose risks that a reasonably prudent patient would deem significant. If the provider’s negligence causes harm, signing a consent form does not bar the patient’s right to pursue a claim.

Contact Stephen Bilkis & Associates

If you believe you or someone you love has been harmed by negligent medical care, you do not have to navigate New York’s complex legal system alone. The experienced medical malpractice attorneys in New York at Stephen Bilkis & Associates are here to evaluate your claim by reviewing medical records, consulting with experts, and assessing liability. We will explain your rights by clarifying the statute of limitations, potential damages, and the next steps. In addition, our team will manage every aspect of the legal process—from the certificate of merit to settlement negotiations or trial—and will advocate for the compensation you deserve, including medical costs, lost wages, and pain and suffering.

Time is of the essence when it comes to medical malpractice claims, as strict deadlines apply. Contact us at 800.696.9529 to schedule a free, no-obligation consultation regarding your case. We serve accident victims and their families in the following locations: Westchester County, Suffolk County, Staten Island, Bronx, Brooklyn, Long Island, Manhattan, Nassau County, and Queens.

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