Medical Malpractice

Medical Malpractice Lawsuit Requirements in New York

By David Goguen, J.D., University of San Francisco School of Law
Before you file a medical malpractice lawsuit in New York, you need to be aware of special procedural rules that have been put in place for these kinds of cases.

A medical malpractice case can be more complicated than other kinds of civil lawsuits (especially when compared with other injury-related legal claims, such as those stemming from a car accident). And this isn't only because of the complexity of the medical and legal issues inherent in these kinds of lawsuits.

In New York, the person filing a medical malpractice lawsuit (the plaintiff) needs to comply with special procedural rules. These safeguards have been put in place as part of so-called "tort reform" efforts to deter the filing of non-meritorious (or downright frivolous) claims against health care providers—claims that can drive up the price of health care systemwide. In New York, the most daunting of these requirements is Rule 3012-a of the New York Civil Practice Law and Rules.

Rule 3012-a states that, in any lawsuit alleging injury caused by medical malpractice, along with the initial complaint (that's the document that starts the lawsuit and lays out the plaintiff's claims), the plaintiff's attorney must file a certificate declaring that he or she:

  • has reviewed the case and consulted with at least one health care expert (usually a physician) who is licensed to practice (in New York or elsewhere), and
  • the attorney "reasonably believes" the expert is knowledgeable as to the medical issues relevant to the plaintiff's claims, and
  • based on this review of the case and the consultation with the expert, the attorney has concluded that there is a "reasonable basis" for the lawsuit.

(Learn more about what it takes to prove that medical malpractice occurred.)

If the attorney is unable to obtain the required consultation with an expert in time to also comply with the lawsuit filing deadline set by the New York statute of limitations for medical malpractice cases, instead of filing the certificate alongside the complaint, the attorney may file it within 90 days after the complaint is served on the defendant health care provider.

If the attorney is unable to comply with the consultation requirement after making three separate "good faith" attempts with three different physicians, because none would agree to the consultation, the attorney must declare so in the certificate that accompanies the complaint.

A few more notes on Rule 3012-a:

  • Regardless of how many defendants are named in the medical malpractice lawsuit, only one certificate needs to be prepared and filed.
  • If the attorney is relying on a liability argument known as res ipsa loquitur, a Latin term that basically translates as "the thing speaks for itself," the attorney must state so in the declaration. An example of res ipsa loquitur in a medical malpractice case is when a medical instrument is left in a patient after a procedure. In other words, this fact in and of itself means that someone was negligent.
  • If the claimant is not represented by an attorney, the requirement for the certificate does not apply, and the claimant need only file the complaint.

A New York medical malpractice attorney will no doubt be well-versed in these rules and will have the experience and skills to anticipate and navigate them, so you don't need to understand the ins and outs of what's required, but if you think you have a medical malpractice case, it helps to have a general sense of what's in store.

Finally, keep in mind that a medical malpractice plaintiff also needs to make sure that the lawsuit is filed in compliance with New York's statutory filing deadlines. Learn more about the statute of limitations for a New York medical malpractice lawsuit.

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