The law that applies to your claim
The four things every claim needs
A duty — a doctor-patient relationship. A departure — care that fell below what a reasonably competent practitioner would have provided. Causation — that the departure caused the harm. And damages — real injury resulting from it. Remove any one and there is no claim, however badly you were treated.
Why a bad outcome is not enough
Medicine deals in probabilities. Operations carry risk, illnesses are missed by competent physicians, and people are harmed without anyone being negligent. The law asks whether the care met the standard, not whether the outcome was good.
Examples that usually are malpractice
- A mammogram showing a lesion that was reported as normal, with cancer diagnosed two years later at a far worse stage
- A surgical sponge left inside a patient and discovered months afterward
- Surgery performed on the wrong side, or the wrong spinal level
- A patient with chest pain discharged from an emergency department without cardiac evaluation, who has a heart attack that night
- An abnormal blood result that returned after discharge and was never followed up by anyone
- Fetal monitoring showing prolonged distress with no action taken for hours
- A medication given at ten times the intended dose because a decimal point was misread
- Severe postpartum bleeding that went unquantified until the mother collapsed
Examples that usually are not
These matter just as much, because they save people from pursuing something that cannot be proved.
- A known complication that was disclosed beforehand and occurred despite competent technique
- A rare condition missed at a first visit where the presentation genuinely pointed elsewhere
- Treatment that did not work, where the choice was reasonable at the time
- A doctor who was abrupt, dismissive or rude — unpleasant, but not in itself a departure
- A delayed diagnosis that changed nothing, because the outcome would have been identical
- Disagreement between two physicians about the right approach
The part people find hardest
Causation. It is entirely possible for a doctor to have plainly departed from the standard of care and for there to be no viable claim, because the harm would have happened anyway.
A missed diagnosis of an aggressive cancer already widely spread at the time of the miss may change nothing about survival. That feels deeply unjust, and it is still the law. An honest assessment addresses this early rather than after two years of litigation.
How to find out where you stand
Start by requesting your complete medical records — you are entitled to them under Public Health Law §18. Ask for the entire chart, not a summary: nursing notes, imaging, laboratory results, and the electronic audit trail.
Then have it reviewed. In New York a malpractice case generally cannot be filed without a qualified physician confirming there is a reasonable basis for it (CPLR §3012-a), so a genuine expert review happens before anything is commenced. A review costs you nothing here, and it will tell you honestly if the answer is that there is no case.
How long you have to act
- Three years from the date of the accident for most negligence claims (CPLR §214).
- Two years for wrongful death (EPTL §5-4.1).
- 90 days to serve a notice of claim where a city, county, school district, transit authority or other public body is involved (General Municipal Law §50-e), with suit generally within one year and 90 days.
The 90-day rule is the one that quietly ends otherwise strong cases. If a public entity may be involved, that is the first thing to check — not the last.
What it costs
Nothing up front. These cases are handled on contingency: there is no fee unless we win, and the consultation is free. You will be told the percentage and how expenses are handled, in writing, before you sign anything.
Common questions
How do I know if I have a case?
Usually you cannot tell from the outside, and neither can we without the records. The four elements above are the framework; the chart supplies the answer.
Is it malpractice if my doctor never apologized?
No. New York shields certain expressions of sympathy from being used as admissions, and an apology’s absence proves nothing either way.
How long do I have to decide?
Generally two and a half years from the act (CPLR §214-a) — shorter than most injury claims, with important exceptions for continuous treatment, for cancer, for children, and a 90-day notice requirement if a public hospital was involved.
Will it cost me anything to ask?
No. The review is free and these cases are handled on contingency, so there is no fee unless there is a recovery.
