New York Malpractice Laws | New York Medical Malpractice
Limits on Malpractice Damages
New York does not limit damages in medical malpractice cases.
Collateral Source Rule
Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff’s own insurance coverage. For medical malpractice cases in New York there is a mandatory offset for collateral source payments, with the adjustment made by the court.
Rules for Expert Witnesses
New York does not impose special rules for expert testimony in medical malpractice cases.
Joint and Several Liability
Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. In New York, unless a defendant is more than 50% responsible for causing a plaintiff’s injury, a defendant is liable for damages in an amount proportionate to the defendant’s fault for the plaintiff’s injury. This limitation is not applicable for injuries resulting from intentional acts, or reckless disregard of the rights of others.
Statute of Limitations
Medical malpractice actions must be filed within thirty months of the date of the act or omission that gave rise to the injury occurred. For malpractice actions based upon the presence of a foreign object within the body of a patient, the action must be filed within one year of the date that the foreign object was or should have been discovered. For medical malpractice actions involving minors, a minor ordinarily has three years from the date of his or her eighteenth birthday to commence litigation but the statute of limitations cannot be extended for more than ten years from the date of the act or omission giving rise to the injury.
Limits on Attorney Fees
New York limits attorney fees in malpractice cases to 30% of the first $250,000.00, 25% of the next $250,000.00, 20% of the next $500,000.00, 15% of the next $250,000.00, and 10% of any recovery greater than $1.25 million.
*A certificate of consultation with an expert must be filed within 90 days of the filing of the complaint in a medical malpractice action.
*Where liability is conceded, either party may request arbitration of the amount of damages. The defendant may concede liability conditioned on a plaintiff’s consent to arbitrate; such a concession of liability is not admissible for any other purpose.
*New York requires mandatory periodic payment of future damages in an amount greater than $250,000.00