A Prerequisite Unique to Medical Malpractice Cases
Medical malpractice cases in New York State are subject to procedural requirements that do not apply to most other personal injury actions. Before or at the time of filing a complaint, a plaintiff's attorney must satisfy a specific prerequisite under New York law, and failing to do so can put the entire action at risk.
In This Article
Certificate of Merit Requirement for Medical Malpractice Lawsuits in New York
CCivil Practice Law and Rules ("CPLR") § 3012-a requires a plaintiff's attorney to file a Certificate of Merit alongside the Complaint when commencing a medical malpractice action. To execute this certificate, the attorney must first review the facts of the case and consult with at least one licensed physician who the attorney reasonably believes is knowledgeable in the issues relevant to the specific action. In dental malpractice cases, the required consultation is with a licensed dentist; in podiatric malpractice cases, with a licensed podiatrist.
Based on that review and consultation, the attorney must certify that there is a reasonable basis for bringing the lawsuit. A single certificate is required per action, regardless of how many defendants are named. The identity of the consulting professional and the substance of the consultation are generally confidential. A plaintiff may, in lieu of filing the certificate, provide the defendant with the expert disclosure information required by CPLR § 3101(d)(1) within the time period otherwise prescribed for the certificate.
The certificate requirement does not apply to a plaintiff who is not represented by an attorney.
Why New York Requires a Certificate of Merit
The legislature enacted the Certificate of Merit requirement to discourage frivolous medical malpractice lawsuits while preserving access to the courts for injured patients with potentially valid claims. The requirement is not a merits test and does not mean the plaintiff must prove negligence before the case can be filed.
Medical malpractice claims carry significant consequences for defendants, the healthcare system, and the courts. The legislative intent in requiring an attorney to consult with a qualified professional before filing is to ensure that only claims with a credible factual and medical basis move forward.
Exceptions and Extensions to the Certificate of Merit Requirement
The law recognizes circumstances in which it would be unreasonable to require a fully executed certificate before the complaint is filed. In those situations, the statute either modifies or extends the deadline for compliance.
Approaching Statute of Limitations
Where the statute of limitations applicable to the malpractice claim would bar the action before the required consultation could be obtained, the attorney may file the complaint without the standard certificate. In that situation, the certificate must be filed within 90 days after service of the complaint.
Three Good-Faith Consultation Attempts
Where the attorney made three separate good-faith attempts to consult with three separate qualified physicians and none agreed to consult, the attorney may file a certificate reflecting those attempts in lieu of the standard consultation certificate. Where an attorney invokes this exception, a court may, upon a defendant's request made prior to discovery, require the attorney to disclose the names of the professionals who refused to consult.
Medical Records Not Yet Produced
Where the plaintiff requested the relevant medical or dental records from the defendant and those records have not been produced, the plaintiff is not required to serve the certificate until 90 days after the records are produced.
Res Ipsa Loquitur
Where an attorney intends to rely solely on the doctrine of res ipsa loquitur, the standard certificate is not required. In that situation, the complaint must be accompanied by a separate certificate declaring that the attorney is relying exclusively on that doctrine.
How an Attorney Can Help Satisfy New York's Certificate of Merit Requirement
Investigating a potential medical malpractice claim requires more than a general understanding of what went wrong. An attorney handling these cases must obtain and review the relevant medical records, identify and consult with a qualified physician who can assess whether the standard of care was breached, determine whether any exception to the standard certificate requirement applies, and file the complaint and any required certificates within the applicable deadlines.
The statute of limitations for medical malpractice in New York is generally two and a half years from the date of the alleged malpractice or from the end of continuous treatment. Missing this deadline will ordinarily bar the claim regardless of its merits. Early retention of counsel gives the attorney the time necessary to do this work properly, consult with the appropriate medical professionals, and satisfy all filing obligations before the window closes.
Sternberg Injury Law Firm PC
Injured patients in New York, or the families of patients who suffered serious harm, can contact the Sternberg Injury Law Firm for a free consultation. Our attorneys understand the procedural requirements that govern medical malpractice actions in New York, including the Certificate of Merit obligation, and will work diligently to obtain the necessary records, consult with qualified medical professionals when appropriate, and ensure that all filing requirements are satisfied before applicable deadlines expire. The Sternberg Injury Law Firm handles cases on a contingency fee basis, meaning clients pay nothing unless the firm recovers compensation on their behalf. Acting promptly protects the right to pursue a claim.
Frequently Asked Questions About Medical Malpractice Lawsuits in New York
Yes. Informed consent forms authorize a provider to perform a procedure, but they do not insulate the provider from liability for performing it negligently. A patient who consents to surgery does not consent to having the wrong site operated on or to having a surgical instrument left inside their body. Negligent execution of a procedure is a separate basis for a malpractice claim, distinct from any failure to obtain informed consent.
Claims can often be brought against both the treating physician and the hospital, depending on the facts. A hospital may be liable for its own institutional negligence, such as inadequate staffing, deficient policies, or failure to credential a physician properly. Where a physician is an employee of the hospital rather than an independent contractor, the hospital may also be vicariously liable for that physician's malpractice. Identifying all potentially liable parties at the outset is an important part of evaluating a medical malpractice case.
New York does not impose a statutory cap on compensatory damages in medical malpractice cases. An injured patient may seek compensation for past and future medical expenses, lost earnings, and pain and suffering, and there is no fixed ceiling on those amounts. Punitive damages, which are awarded to punish particularly egregious conduct, are rare in malpractice cases and are not available in every jurisdiction or under every set of facts.