New York Medical Malpractice Summary

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Statutes of Limitations

In New York, any medical malpractice action must be brought within two and a half years from the act or omission complained of or from the end of a continuous treatment during which the act or omission took place. N.Y. C.P.L.R. § 214a (McKinney 1990). However, foreign object cases may be brought within one year from the date upon which the foreign object is discovered. Id. A claimant’s incompetency (i.e., infancy or insanity) tolls the above-noted limitations until the disability ceases, but in medical malpractice cases this can only extend the limitations period a maximum of ten years. N.Y. C.P.L.R. § 208 (McKinney 1990).

An action alleging wrongful death must be brought within two years from the date of death. N.Y. Est. Powers & Trusts Law § 5-4.1 (McKinney Supp. 1997-1998); Krowicki v. St. Elizabeth Hospital, 113 A.D.2d 1023, 494 N.Y.S.2d 590 (1985).

Contributory or Comparative Negligence

New York is a pure comparative negligence state. A claimant’s negligence, no matter how great, will not bar recovery, but the damages recoverable will be reduced in proportion to his negligence. N.Y. C.P.L.R. § 1411 (McKinney 1997).

Joint and Several Liability

As a general rule, New York holds joint tortfeasors jointly and severally liable. Klinger v. Dudley, 41 N.Y.2d 362, 361 N.E.2d 974, 393 N.Y.S.2d 323 (1977). However, any joint tortfeasor whose liability is 50 percent or less of the tortfeasors’ combined fault is severally liable only for the claimant’s non-economic losses. N.Y. C.P.L.R. § 1601 (McKinney 1997). Non- parties are not counted in this calculation if they could not be joined or are immune from liability. Id.

Contribution

In New York, joint tortfeasors have a right to contribution. N.Y. C.P.L.R. § 1401 (McKinney 1997). A claim for contribution may be brought by either a cross-claim, a third-party claim, or a separate action. N.Y. C.P.L.R. § 1403 (McKinney 1997). Liability in contribution is determined by the tortfeasors’ relative degrees of fault. Ravo v. Rogatnick, 70 N.Y.2d 305, 514 N.E.2d 1104, 520 N.Y.S.2d 533 (1987).

Vicarious Liability

Hospitals are not vicariously liable for the acts of non-employee members of the medical staff. Hill v. St. Clare’s Hospital, 67 N.Y.2d 72, 490 N.E.2d 823, 499 N.Y.S.2d 904 (1986). However, a hospital can become liable for emergency physicians and others either by actual agency, because the control it exercises makes purported independent contractors employees in fact, or by ostensible or apparent agency, because it holds out independent contractors as hospital employees. Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (1976).

Expert Testimony

At the time of filing a complaint or within 90 days thereafter, a claimant generally must file a certificate which indicates that the claimant’s attorney has consulted with an expert on the case or, in the alternative, that such a consultation could not be obtained. N.Y. C.P.L.R. § 3012-a (McKinney 1991). This requirement, however, does not apply when res ipsa loquitur is the only theory alleged. Id. Also, in lieu of doing so, the claimant may provide discovery information concerning its experts, their qualifications, and the nature and scope of their opinions. Id.

Expert testimony is required at trial, unless the matter is within the ordinary experience and knowledge of laymen. Fiore v. Galang, 64 N.Y.2d 999, 478 N.E.2d 188, 489 N.Y.S.2d 47 (1985).

It is a distinctive characteristic of New York practice that expert witnesses are generally not deposed prior to trial. While each party must disclose the substance of an expert’s qualifications and expected testimony, it need not disclose his identity. N.Y. C.P.L.R. § 3101(d) (McKinney 1991 & Supp. 1997-1998). Further disclosure, including oral deposition, is only allowed by agreement or by court order under special circumstances. Id. This is in contrast to the many jurisdictions in which expert discovery dominates pre-trial preparation.

Damage Caps

New York does not limit the amount of damages recoverable in medical malpractice actions.

Statutory Cap on Attorneys’ Fees

The attorneys’ contingent fees in a medical malpractice action shall not exceed the following schedule: (a) 30 percent of the first $250,000, (b) 25 percent of the next $250,000, (c) 20 percent of the next $500,000, (d) 15 percent of the next $250,000, and (e) 10 percent of any amount over $1,250,000. N.Y. Jud. Law § 474-a (McKinney Supp. 1997).

Periodic Payments

A claimant’s future damages in excess of $250,000 must be paid in periodic payments. N.Y. C.P.L.R. § 5031 (McKinney 1992). Those damages relating to the claimant’s future pain and suffering must be paid in a period no longer than 10 years. Id. Further, a judgment debtor’s obligation to make such periodic payments terminates at the judgment creditor’s death, unless the parties agreed otherwise. N.Y. C.P.L.R. § 5035 (McKinney 1992). The judgment debtor’s obligation to pay, however, does not terminate with respect to damages for lost future earnings. Id.

Collateral Source Rule

New York has repealed the collateral source rule in medical malpractice cases. N.Y. C.P.L.R. § 4545(a) (McKinney 1992). Therefore, evidence of the claimant’s receipt of collateral benefits may be submitted to the court so that those benefits can be deducted from claimant’s recoverable damages. The claimant is entitled to credit for premiums paid over the two years preceding the accrual of the cause of action and projected future payments for obtaining such benefits. Id.

In medical malpractice cases, damages for lost income are reduced by the taxes the claimant (or decedent) would have been reasonably certain to owe on the lost income. N.Y. C.P.L.R. § 4546 (McKinney 1992) and N.Y. Est. Powers & Trusts Law § 5-4.3 (McKinney Supp. 1997-1998).

Pre-Judgment Interest

Medical malpractice and other personal injury cases are not included among those for which pre-trial interest is authorized. N.Y. C.P.L.R. § 5001(a) (McKinney Supp. 1997-1998). However, in a bifurcated trial interest is calculated from the date of the liability determination. Love v. State, 78 N.Y.2d 540, 583 N.E.2d 1296, 577 N.Y.S.2d 359 (1991). Interest is computed in a wrongful death case from the date of death. N.Y. Est. Powers & Trusts Law § 5-4.3 (McKinney Supp. 1997-1998). However, no pre-trial interest is allowed on amounts awarded for future damages. Milbrandt v. A.P. Green Refractories Co., 79 N.Y.2d 26, 588 N.E.2d 45, 580 N.Y.S.2d 147 (1992).

Patient Compensation Funds and Physician Insurance

New York does not provide a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.

Immunities

The State of New York has waived its immunity, including that of its political subdivisions. N.Y. Ct. Cl. Act § 8 (McKinney 1989); Sharapata v. Town of Islip, 56 N.Y.2d 332, 437 N.E.2d 1104, 452 N.Y.S.2d 347 (1982). Claims must be filed within 90 days of the injury or, if a notice of intent to sue is filed within the 90-day period, within two years from the time the cause of action accrued. N.Y. Ct. Cl. Act § 10 (McKinney 1989 & Supp. 1997-1998).

Arbitration

New York has a procedure by which a defendant can concede liability in exchange for an agreement to arbitrate damages. N.Y. C.P.L.R. § 3045 (McKinney 1991). It also expressly authorizes health maintenance organizations (defined broadly) to agree in writing with their members prior to treatment that all medical malpractice claims will be arbitrated. Members must be permitted to opt out. N.Y. Pub. Health Law § 4406-a (Supp. 1997-1998).

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Revision Date: February 6, 1998