Commencing A New York Medical Malpractice Case


For all medical malpractice actions in New York, before you even file your papers you need to compile the medical record.  This is because an expert doctor must review the file and determine whether there has been medical malpractice from the file.  This is because a lawyer is not a medical expert, and a medical malpractice case requires a deviation of the standard of care, therefore a medical expert is required to make such claim.  This is known as a certificate of merit, and it says that there is merit to a lawsuit.

Once you have a certificate of merit, to commence a medical malpractice action in New York you will need to put together a summons and either a complaint or notice to be filed with the county clerk’s office.  A complaint is the standard practice, which is a document that explains all of the allegations.  A notice is a short-form complaint and not commonly used, but does have utility when the action has a statute of limitations period coming up or it is likely there will be defaults.  The summons is needed in all actions, and that is a document which summons the defendant to answer the court.

Once you have filed your summons and complaint/notice, you will need to serve it on the defendants.  This must be done in a very specific way which is calculated to give the defendant notice of the lawsuit.  This means personal service or, in the case of a business, through the secretary of state.

After you have completed all of these initiatory steps, the lawsuit will proceed through disclosure where evidence is exchanged, through depositions, and through motion practice before it is ready for trial.  The first steps, however, are the most challenging because errors here could lead to a bad foundation for the rest of the case.  This needs to be well taken care of to ensure success.