Medical malpractice is a healthcare provider’s failure to meet the accepted standard of care, resulting in injury to a patient. Recovery requires proof of four elements: a provider-patient relationship creating a duty of care, breach of the applicable standard of care, causation linking the breach to the injury, and compensable damages. Each element must be supported by qualified medical expert testimony.

The Four Elements of a Medical Malpractice Claim

1. Duty A provider-patient relationship existed that created a duty of care. Most clinical encounters establish this; informal advice, “curbside consults,” and certain emergency situations do not always create the duty.	2. Breach The provider’s conduct departed from the accepted standard of care — the level of skill and care exercised by reasonably competent providers in the same specialty under similar circumstances. Breach almost always requires expert testimony.
3. Causation The breach was a substantial factor in causing the injury. New York follows a “substantial factor” causation standard, which is more flexible than strict but-for causation. A pre-existing condition does not bar recovery if the malpractice worsened it.	4. Damages The patient suffered compensable harm — medical expenses, lost earnings, pain and suffering, loss of enjoyment of life, or, in fatal cases, wrongful death damages. New York imposes no statutory cap on medical malpractice damages.

New York Medical Malpractice Statutes of Limitations

The deadline to file depends on the type of claim, the defendant, and the circumstances of discovery. Missing the deadline almost always destroys the claim regardless of merit.

Type of Claim	Deadline
General medical malpractice	2 years and 6 months from the act, omission, or end of continuous treatment for the same condition (CPLR § 214-a)
Foreign object left in body	1 year from the date of discovery, regardless of when the surgery occurred (CPLR § 214-a)
Failure to diagnose cancer or malignant tumor (Lavern’s Law)	2 years and 6 months from the date the patient knew or reasonably should have known of the injury, not to exceed 7 years from the act or omission (CPLR § 214-a)
Public hospital or municipal provider	Notice of Claim within 90 days of accrual (GML § 50-e); lawsuit within 1 year and 90 days (GML § 50-i), with the malpractice SOL applying to the underlying claim
Wrongful death (fatal malpractice)	2 years from the date of death (EPTL § 5-4.1), in addition to any pre-death survival action
Minors	SOL is tolled during minority (CPLR § 208) but capped at 10 years from the act or omission

The continuous treatment doctrine can extend the deadline by tolling the SOL while the patient remains under the defendant’s care for the same condition. This doctrine is fact-specific and requires careful analysis of treatment records.

Common Medical Malpractice Claims

Surgical errors. Wrong-site surgery, wrong-patient surgery, retained foreign objects (sponges, instruments), nerve and organ damage from technical error, and post-operative complications from inadequate monitoring or aftercare.

Misdiagnosis and delayed diagnosis. The largest category of malpractice claims by volume. Most often involves cancer (breast, colorectal, lung, melanoma), heart attack and stroke, pulmonary embolism, sepsis, and infections. Lavern’s Law specifically extends the SOL for failure-to-diagnose cancer cases.

Birth injury. Brachial plexus injuries (Erb’s palsy), hypoxic-ischemic encephalopathy (HIE), cerebral palsy associated with delayed delivery, failure to perform timely C-section, and obstetric trauma. Birth injury cases typically involve complex causation analysis and lifelong damages.

Medication errors. Wrong drug, wrong dose, dangerous drug interactions not caught at prescribing or pharmacy, and failure to monitor for known adverse effects.

Anesthesia errors. Intubation injuries, dosing errors, failure to monitor vital signs, and failure to recognize and treat anesthesia complications including malignant hyperthermia.

Hospital and emergency room negligence. Inadequate triage, failure to admit, failure to follow up on test results, premature discharge, and falls or other in-hospital injuries from inadequate supervision.

Nursing home neglect and abuse. Pressure ulcers (bedsores), falls, malnutrition and dehydration, medication errors, untreated infections, and physical or sexual abuse.

Informed consent failures. Performing a procedure without disclosing material risks that a reasonable patient would have wanted to know in deciding whether to consent (Public Health Law § 2805-d).

Certificate of Merit Requirement

New York requires plaintiff’s counsel to file a Certificate of Merit (CPLR § 3012-a) with the complaint or within 90 days of filing. The certificate confirms that counsel has consulted with at least one licensed physician and has concluded, based on that consultation and review of the case, that there is a reasonable basis for the action. This screening requirement makes early expert review essential — the firm engages qualified medical experts during case evaluation, before any complaint is filed.

Damages Available in New York Medical Malpractice Cases

Economic damages. Past and future medical expenses, past and future lost earnings, lost earning capacity, rehabilitation costs, in-home care, medical equipment, and home modifications. Future damages typically require economic expert testimony to establish present value.

Non-economic damages. Pain and suffering, loss of enjoyment of life, emotional distress, and disfigurement. Unlike many states, New York imposes no statutory cap on non-economic damages in medical malpractice cases. Awards are reviewed under the CPLR § 5501(c) “deviates materially from reasonable compensation” standard on appellate review.

Wrongful death damages. When malpractice causes death, EPTL Article 5 governs the wrongful death action, brought by the personal representative of the estate for the benefit of statutory distributees. New York’s wrongful death statute traditionally limited recovery to pecuniary loss — the financial value of what the decedent would have provided. A separate survival action under EPTL § 11-3.2 captures the decedent’s pre-death pain and suffering and medical expenses. For more on fatal malpractice cases, see our wrongful death lawyers page.

Loss of consortium. A spouse may recover separately for loss of services, society, and companionship caused by the malpractice.

The Medical Malpractice Litigation Process

What to Do If You Suspect Medical Malpractice

Get a copy of your medical records. Under HIPAA you have a right to your records. Request them from every provider involved — the hospital, treating physicians, imaging centers, labs, pharmacies. Records are easier to obtain before litigation begins.

Write down what happened while it is fresh. Dates, providers seen, what was said, what was done, what symptoms developed and when. Memory fades; contemporaneous notes are valuable.

Do not sign anything from the provider’s insurer or risk management. Releases, waivers, and recorded statements offered shortly after a bad outcome usually serve the provider’s interests, not yours.

Continue treatment with new providers. Mitigate damages and document the ongoing harm. Treatment from independent providers also produces neutral records.

Contact a lawyer before the SOL runs. The SOL is short and there is no extension for “I didn’t realize I might have a case.” Lavern’s Law and the discovery rule have specific applications, not general ones.

Frequently Asked Questions

Is a bad outcome the same as malpractice?

No. Many serious complications occur without any breach of the standard of care. Recovery requires proof that a reasonably competent provider in the same specialty would have done something different and that the difference would have changed the outcome. Expert review is essential before that question can be answered.

How much does it cost to bring a medical malpractice case?

The firm handles medical malpractice cases on a contingency fee basis — no fee unless we recover for you. Case costs (expert fees, records, deposition transcripts, court fees) are typically advanced by the firm and reimbursed from any recovery. The fee structure is governed by Judiciary Law § 474-a, which sets sliding-scale caps on attorney fees in medical malpractice cases.

How long do these cases take?

From filing to resolution, medical malpractice cases in New York typically run two to four years. Cases involving public hospitals, complex causation, or multiple defendants can take longer. Settlement before trial is common; cases that go to verdict take longer because of the trial calendar.

What if my loved one died from malpractice?

A wrongful death action under EPTL Article 5 is brought by the personal representative of the estate for the benefit of statutory distributees. The deadline is 2 years from the date of death. A separate survival action captures the decedent’s pre-death pain, suffering, and medical expenses. See our wrongful death lawyers page for more.

Can I still bring a claim if I signed an arbitration agreement or consent form?

Possibly. Pre-treatment arbitration agreements in healthcare settings face significant enforceability challenges in New York. Consent forms generally do not waive malpractice claims — they document informed consent to known risks of properly performed procedures, not to negligence. The firm reviews these documents as part of case evaluation.

What if I am partly to blame for my injury?

New York is a pure comparative fault state (CPLR Article 14-A). Recovery is reduced by the percentage of fault attributable to the patient but not eliminated. Failure to follow medical advice, missed appointments, or delays in seeking care can reduce but generally do not bar recovery.

Do you handle cases against public hospitals?

Yes. Claims against NYC Health + Hospitals, county hospitals, SUNY academic medical centers, and other public providers are subject to Notice of Claim requirements (GML § 50-e) and shorter procedural deadlines. The 90-day Notice of Claim period is strict and runs from accrual, not from when malpractice is discovered. Contact the firm immediately if a public-hospital provider may be involved.

How We Help

The firm evaluates potential medical malpractice cases at no cost. If we accept the case, we handle records collection, expert review, Certificate of Merit, pleading, discovery, motion practice, mediation, and trial preparation. The firm partners with experienced trial counsel where the case benefits from additional trial resources, particularly for high-value or complex matters.

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Last reviewed by Attorney Ronald S. Cook — May 2026

This page is for informational purposes only and does not constitute legal advice. Statutes of limitations and procedural rules change; verify current requirements before relying on the information here. Client reviews and ratings reflect individual experiences and do not guarantee a similar outcome. Prior results do not guarantee future results.