The Litigation Process For A Medical Malpractice Case


Every medical malpractice case is different.  However, to commence any medical malpractice action the attorney for the plaintiff needs to start by:

  • Filing a complaint on the patient’s behalf
  • Serving the defendant who answers with a request authorization and a Bill of Particular
  • In a court hearing, a discovery schedule is established with all parties
  • An independent party conducts a medical examination for the defense’s benefit
  • The trial is scheduled

How to Begin Preparing

A medical malpractice lawsuit is strongest when the plaintiff and plaintiff’s attorney has important documentation of the incident, including:

  • Description of the impairment the patient suffers due to the medical injury
  • Medical records
  • Photographs of the injury
  • A police report (if applicable)
  • The patient’s diary or other self-written account of the events that led to the injury or condition


The statute of limitations in New York for a medical malpractice case is two and a half years from the time the malpractice occurred or after the date of last continuous treatment for the condition that resulted in the patient being injured.  In cases of foreign objects being left in the body, the patient has one year from the date the foreign object was discovered or should have been discovered (whichever comes first).

There are also cases where the statute of limitation is tolled, such as if a child is under 18 years of age when the medical malpractice occurred.  In the case of the minor the statute of limitations begins to run at 18 years of age.  However, there is a limit to this in that the action for a minor cannot start later than ten years from the date the incident occurred or the last day of continuous treatment (whichever is later).

Possibility of Settling out of Court

Claims for medical malpractice do not settle out of court easily.  Many do not admit to doing anything wrong and settling out of court is seen as such an admission.  Therefore it is important that the patient’s attorney be prepared to try the case.  Statistically, most medical malpractice claims are very difficult to win.  Therefore a victim’s best chance of winning at trial or settling the case is with an experienced medical malpractice attorney.

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