Timeline of a New York Medical Malpractice Lawsuit

Many law firms, like Powers & Santola, LLP, offer free and confidential consultations. You should take advantage of this opportunity. If you believe that you or a loved one has been harmed by medical malpractice, you should allow an attorney with experience in this area of the law to review your case.

During the consultation, you should expect the lawyer to ask questions that are aimed at learning more about the:

• Medical condition that prompted you to seek treatment
• Actual treatment you received (and that you believe was negligent)
• Physical, emotional and financial harm you have experienced.

Although exceptions exist, New York generally requires a medical malpractice claim to be filed within 30 months from the:

• Date of the negligent act (or failure to act)
• End of continuous treatment.

You need to keep this medical malpractice statute of limitations in mind. It is one reason why you should meet with a lawyer as soon as possible about your case.

Before moving ahead with litigation of a case, your lawyer will conduct an initial investigation. The goal is to determine whether your case may meet the elements of a medical malpractice claim.

In other words, is there a reason to believe that a medical professional – doctor, nurse or other – failed to meet the standard of care that applied to the treatment you received, and did that failure cause you to suffer harm?

The initial investigation will also be aimed at determining who should be held liable in a claim, or the potential defendants. (You, the patient, are the plaintiff.)

The preliminary investigation requires obtaining and reviewing medical records. It also involves consulting with a medical expert – typically, a doctor who practices in the same area of medicine as the doctor who treated you.

This investigation may take several weeks or months to complete. It depends on the availability of the records in your case and the complexity of the legal and medical issues involved.

For example, in a case involving a delayed diagnosis of cancer, numerous tests and reports may need to be studied in order to pinpoint why the delay occurred and whether that delay cost you the chance to get effective treatment.

If you and your attorney decide to move forward, a lawsuit will need to be filed. This is called a complaint. It sets forth the factual and legal allegations in your case.

The complaint is filed in the county where the malpractice occurred and accompanied by a summons, or order to appear in court. These documents must be served on all defendants who are named in the lawsuit – for example, the doctor, hospital administrator and hospital owner.

In New York – except under certain circumstances – the complaint and summons must also be accompanied by a certificate of merit. In this document, the lawyer certifies that he or she has:

• Reviewed the facts of the case
• Consulted with at least one licensed physician whom the attorney reasonably believes is knowledgeable about the medical issues in the case
• Based on this review and consultation, there is a reasonable basis to commence legal action.

In some cases, the lawyer may have 90 days after the lawsuit is filed in which to file the certificate of merit or may be excused from filing one at all.

After a lawsuit is filed, all parties in the lawsuit go through a formal investigation process. It is called discovery. It involves going through the court system to obtain evidence that bears on the case, including:

• Interrogatories – A list of questions about basic facts in the case
• Requests for documents – Formal demands to see medical records, test results, invoices and other items.

Additionally, both sides will likely seek to obtain sworn statements called depositions (oral) and affidavits (written). You may be required to go through a medical examination as well.

As in the preliminary investigation, this phase can take many months to complete. If a doctor or hospital fails to cooperate, your attorney may need to file a motion and ask a court to force the other side to comply with a discovery request. Of course, a lack of cooperation can prolong a case.

At the proper time – before a trial is held – your attorney will send a demand letter to the defendants. This letter will state the case against them and set forth a demand for compensation, including:

• Past and future medical expenses
• Lost past income and diminished future income
• Pain and suffering.

The demand letter typically initiates negotiations for a settlement, or an agreement to resolve the case. If a settlement is reached, you will sign a release, and the defendants will issue checks to cover the agreed-upon damages.

If a full and fair settlement is not reached, however, the case will go to court. (However, even if a case goes to trial, settlement talks may continue.)

In some cases, issues other than compensation can be sticking points. For instance, many doctors and hospitals try to require the signing of a nondisclosure provision, or “gag clause,” that prohibits disclosure of information about the case. (Our firm does not allow such clauses in settlement agreements.)

It is difficult to estimate how long settlement negotiations will last. These talks may be held during discovery and evolve as more evidence is revealed.

In some cases, the parties may agree to bring in a neutral party to help them reach an agreement. This person – typically a lawyer or retired judge – is called a mediator. A court may, in certain cases, order the mediation of a dispute.

If no settlement is reached, the case will go to trial. Each side can present evidence before a judge and jury. The evidence can consist of documents, exhibits and witness testimony, including the testimony of medical expert who reviewed your case. The amount of evidence presented will determine how long trial lasts.

A case may be divided into two phases:

• Liability – Establishing the legal basis for holding the defendants responsible for your harm
• Damages – The amount you are entitled to recover if liability is established.

After all the evidence has been presented, the jury will deliberate and return a verdict on liability, damages or both. The court will then enter judgment.

Depending on the outcome, you or the other parties may file post-trial motions or an appeal to the next highest court. Post-trial motions and/or an appeal can extend a case by many months and even by many years.

Once a settlement is reached or a judgment in your favor is final, the funds from the case must be collected and distributed. In some cases, action may need to be taken to enforce a judgment.

Your attorney will be in charge of distributing these funds. The attorney will make sure that any liens on your recovery – for instance, payments to Medicare or a private health insurer – are resolved. Also, costs and fees of litigation will be deducted (as agreed upon at the start of representation).

You will then receive the funds in either a lump sum payment or in a series of payments. This is called a structured settlement.