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Challenges in Filing a Medical Malpractice Lawsuit in New York

The organization responsible for municipal hospitals is New York City is HHC (Health and Hospitals Corporation). If there is a wrongdoing by these hospitals, the patient only has 90 days to file a notice of claim against the hospital from the date of the wrongdoing. After that, the patient has another one year and ninety days to file a lawsuit.

There are several steps in the procedure after you have filed your claim notice, before you are allowed to file a lawsuit. One of these steps will be small deposition, popularly known as the 50-H Hearing, which is based on general obligations laws. The purpose of this hearing is to enable HHC to investigate the wrongdoing claimed by the patient and the events that actually happened.

Notice of Claim

Your notice of claim has to be very specific, where you need to state clearly:

  • Where the wrongdoing occurred
  • What was done wrong according to you
  • What injuries you suffered because of the wrongdoing
  • List or itemize the damages caused to you

If your notice does not have all this information, your case could be dismissed later on because your claim notice did not have the required information.

Once the proper claim notice is filed, the patient has one year and ninety days to file the lawsuit. However, what happens when a medical malpractice lawyer has a client who wants to file this lawsuit after this period has lapsed? Alternatively, what happens when the client has failed to file the notice of claim within the initial 90 days? In such circumstances, the court allows a special procedure for filing a late claim or lawsuit. Even though it is possible, filing a late claim notice can be quite challenging.

Secondly, in New York, no attorney is permitted by law, to start a medical malpractice case, unless a medical expert confirms:

  • There is liability
  • There is causation
  • There are damages

The Process

Therefore, medical malpractice cases are quite different from other personal injury cases such as auto accident, slip and fall, or dog bite cases, where the attorney is immediately able to file a lawsuit. In medical malpractice, the lawyer will have to conduct a thorough investigation of the medical records of the patient, and then those records have to be sent to a medical expert to obtain confirmation that there is valid basis for the case. Then the lawyer has to certify to the court that such confirmation has been obtained.

If the client comes to a lawyer after the time allowed for filing has elapsed, then the procedure becomes even more complicated, since the time is ticking, and acquiring, checking medical records, and attaining the confirmation takes time. It could take weeks or even months to find a medical expert who is willing to review all the records pertaining to the case.

Timing Matters

The court does permit late filing of notice of claim, provided the concerned medical records are available, and the doctors involved in the supposed wrongdoing are still there. However, there have been many instances when the court has refused a late filing, as well, for various reasons.

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