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The Law of Medical Malpractice in New York:

A Survey of Basic Considerations

Introduction

New York medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in New York are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in New York exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.
Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in New York by both members of the general public as well as practicing lawyers. This widespread lack of understand is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.
This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of New York medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.
Section I below discusses the broad basic principles and concepts of medical malpractice law in New York. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XII examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in New York.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in New York?
-Required Elements of a Medical Malpractice Claim in New York
-Proof of Negligence
-Requirement of Expert Medical Opinion
-Unauthorized Practice of Medicine
-Res Ipsa Loquitur
-Laymen

II. Filing Deadlines for Medical Malpractice Claims
-Statute of Limitations: Introduction
-Statute of Limitations for Medical Malpractice Claims in New York
-Continuous Treatment Doctrine
-The Discovery Rule: Foreign Object Left Inside Patient
-Statute of Limitations with Public Hospital as Defendant
-Additional Tolling Provisions
-Minors
-Insanity

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in New York

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in New York
-Negligent Performance of Government Function
-Good Samaritan Law
-Introduction
-New York’s Good Samaritan Law
-Additional Immunities and Limitations on Liability

V. Elements of a Medical Malpractice Complaint
-Notice of Medical Malpractice Action

VI. Certificate of Merit
-Dismissal of Claim for Failure to File Certificate of Merit

VII. Ex Parte Communications with Non-party Treating Physicians

VIII. Expert Medical Witnesses
-Who Qualifies as An Expert Medical Witness
-Expert Medical Witness Testifying Outside of Specialization
-Degree of Certainty Necessary for Testimony to be Considered Reliable
-Admissibility of Expert Testimony About Scientific Principles and Discoveries

IX. Comparative Negligence

X. Court Adjustments to Damages Awards

XI. Limitations on Attorney Fees
-Contingency Fee Arrangement
-Statutory Limitations
-Departure from Fee Schedule Due to Extraordinary Circumstances
-Contingency Fee for Infants (Minors)

XII. New York State Medical Indemnity Fund

The New York State Unified Court System
It will be helpful to briefly discuss New York courts themselves before proceeding any further. For readers who are familiar with the basic structure of the federal court system and that of other states, the structure of New York’s court system may be somewhat confusing at first. The naming convention used for the various courts and their respective role within the hierarchy of the New York State Unified Court System is different than in the federal court system and other states.

New York’s highest court of appellate jurisdiction is the Court of Appeals (whereas, in other states and the federal system, this court is called the Supreme Court). Immediately below the Court of Appeals, are the Appellate Divisions of the Supreme Court (courts of original jurisdiction located in each county, see below), which have intermediate appellate jurisdiction over specific lower courts. To complicate matters further, there is the Supreme Court, Appellate Term, which also has intermediate appellate jurisdiction over other specific lower courts. Additionally, each county has a Supreme Court, which has original jurisdiction (trial courts), and there are numerous other courts with original jurisdiction based upon various factors. To help navigate the New York court structure, a review of its organizational chart is helpful as is the New York State Unified Court System: An Introductory Guide.

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in New York?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

In general, medical malpractice claims in New York are governed principally by the 1985 Medical Malpractice Reform Act.  The Act is comprised of numerous procedural and substantive revisions and additions to several of the state’s Consolidated Laws, including the Public Health Law, Civil Practice Law & Rules, Education Law, Insurance Law, and Judiciary Law.  The specific statutory provisions of the Act are thus scattered throughout the foregoing Consolidated Laws.  The primary objectives of the Act were to: (1) contain the soaring cost of medical malpractice insurance while assuring the right to fair compensation for injured persons, (2) expedite the resolution of medical malpractice claims and thereby reduce the cost of malpractice litigation, and (3) reduce incidents of medical malpractice.  L 1985, ch 294, Mem of State Executive Dept, 1985 McKinney’s Session Laws of NY, at 3022-3027.

Required Elements of a Medical Malpractice Claim in New York

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under New York law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers satisfy the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

New York medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

There are four basic elements of a compensable medical malpractice claim in New York that must all be proven by the plaintiff to the satisfaction of the fact finder.Gross v. Friedman, 73 N.Y.2d 721 (1988) and Stukas v. Streiter, 83 A.D.3d 18, 23 (App. Div. 2011).

  1. Duty—the defendant is a healthcare provider who owed the injured patient a legal duty of care;
  1. Breach—the healthcare provider’s actions deviated from or fell below the accepted standards of medical practice thereby breaching the legal duty of care owed;
  1. Causation—the healthcare provider’s breach of the required standards of medical practice proximately caused or contributed to causing injury to the patient; and
  1. Damages—the injured patient suffered damages because of the injuries.

The Court of Appeals described a physician’s duty towards his or her patient and required accepted standards of medical practice as follows:

Upon consenting to treat a patient, it becomes his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. The law holds him liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment. The rule in relation to learning and skill does not require the surgeon to possess that extraordinary learning and skill which belong only to a few men of rare endowments, but such as is possessed by the average member of the medical profession in good standing. Still, he is bound to keep abreast of the times, and a departure from approved methods in general use, if it injures the patient, will render him liable, however good his intentions may have been.…  The rule requiring him to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination. His implied engagement with his patient does not guarantee a good result, but he promises by implication to use the skill and learning of the average physician, to exercise reasonable care and to exert his best judgment in the effort to bring about a good result.

Pike v. Honsinger, 155 N.Y. 201, 209-210 (1898).

With respect to a healthcare practitioner’s breach of his or her duty of care, the Court of Appeals stated that “a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury.”  James v. Wormuth, 21 N.Y.3d 540, 545 (2013).  However, “[e]vidence of negligence is not enough by itself to establish liability.”  Sheehan v. City of New York, 40 N.Y.2d 496, 501 (1976).   “[I]t also must be proved that the negligence was a proximate, or legal, cause of the event that produced the harm sustained by the plaintiff.”  Hain v. Jamison, 28 N.Y.3d 524, 528 (2016)[1].

The Court of Appeals readily acknowledged the difficulty in defining proximate cause, stating: “The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations.”  Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 314 (1980).  It added, “[g]iven the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause….”  Id. at 315.

“Proximate cause is, at its core, a uniquely fact-specific determination.” Hain, 28 N.Y.3d at 530.The fundamental principle regarding determinations of proximate cause is that a “defendant’s negligence qualifies as a proximate cause where it is a ‘substantial cause of the events which produced the injury.’”  Mazella v. Beals, 27 N.Y.3d 694, 706 (2016), quoting Derdiarian, 51 N.Y.2d at 315.  As a general rule, the issue of whether an act of negligence constitutes a substantial cause of the plaintiff’s injuries is a question of fact for the fact finder to decide.  Hain, 28 N.Y.3d at 529.

Note that the terms ‘medical malpractice’ and ‘medical negligence’ are often used interchangeably as synonyms.  Technically, that is not accurate.  Medical negligence is only one of the four necessary elements of a medical malpractice claim, so it cannot be the equivalent of medical malpractice by itself.  When the additional elements of legal duty, causation, and damages are combined with medical negligence, then that resultant combination of elements gives rise to medical malpractice.

Proof of Negligence

Requirement of Expert Medical Opinion

Expert medical opinion evidence is required when the subject matter or issues to be decided upon are “not within common knowledge and experience” of the ordinary juror.  Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 396 (1941).In particular, when the exercise of the defendant’s professional judgment in deciding how to treat the plaintiff is at issue, then expert medical opinion testimony is required to assist the jury’s understanding of whether the defendant was negligent.  James v. Wormuth, 21 N.Y.3d 540, 547(2013). Additionally, expert medical opinion testimony is sometimes needed to bridge the gap between the jury’s own common knowledge and specialized knowledge and experience required to reach a conclusion regarding negligence.  States v. Lourdes Hospital, 100 N.Y.2d 208, 212 (2003).

Unauthorized Practice of Medicine

The New York Civil Practice Law & Rules (“CPLR”) §4504(d) provides that in “any action for damages for personal injuries or death against a person not authorized to practice medicine” in New York under Article 131 of the Education Law“the fact that such person practiced medicine without being so authorized shall be deemed prima facie evidence of negligence.”  Prima facie evidence of negligence means that the unauthorized practice of medicine is sufficient to establish a rebuttable presumption of negligence.  However, as the Court of Appeals stated in Sheehan, establishing negligence alone is not sufficient to prove liability for the plaintiff’s injuries.  The plaintiff must still prove proximate cause between the negligent acts or omissions and his or her injuries.

Res Ipsa Loquitur

Res ipsa loquituris Latin for “the thing speaks for itself.”  Essentially, it is a legal doctrine that allows plaintiffs to use circumstantial evidence to infer negligence. The Court of Appeals described res ipsa loquitur as the rule recognizing “what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence.”  Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 226 (1986).  The classic example is when the wrong limb is amputated, e.g., right leg amputated instead of the left one, resulting in the loss of both legs since the left one must still be amputated as originally planned.  Undoubtedly, the wrong limb does not get amputated without someone being negligent.

Res ipsa loquitur also applies to situations where “the actual or specific cause of the accident is unknown.”Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 494 (1997).In this situation, a jury may infer negligence “merely from the happening of an event and the defendant’s relation to it.”  Id.  To establish a prima facie case of negligence, the plaintiff must establish three elements:

  1. the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence;
  1. it must be caused by an agency or instrumentality within the exclusive control of the defendant; and
  1. it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Laymen

Expert medical opinion testimony is not required in every case.  The Court of Appeals directed that “where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary.”Meiselman, 285 N.Y. at 396.

[1]For a discussion of intervening causes and foresee-ability, both of which are significant factors in a proximate cause analysis but beyond the scope of this article, as well as a review of the application of the various principles articulated by the Court of Appeals to actual cases, see Hain.

II. Filing Deadlines for Medical Malpractice Claims

Statute of Limitations: Introduction

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in New York

The statute of limitations for filing a medical malpractice lawsuit in New York is set forth in CPLR §214-a.  It states that an action for medical, dental, or podiatric malpractice must be filed within two years and six months of the date of (1) the act or omission, (2) the failure complained of, or (3) the last treatment where there is continuous treatment for the same illness, injury, or condition that gave rise to the said act, omission, or failure.

The triggering events for the starting of the limitations period are all focused on the date of the commission of the alleged negligence.  That is the date upon which a cause of action for medical malpractice accrues.  Davis v. City of New York, 38 N.Y.2d 257, 259 (1975).  The term ‘accrues’ simply means when all essential elements are present and a claim becomes legally actionable.

The focus upon the date of the commission of the alleged negligence as the triggering event under New York’s statute of limitations is a departure from most other states where the focus is upon the date the injury is discovered or should have been discovered[1].  This is a critical distinction because the expiration of the limitations period in New York occurs relatively quickly and potentially even before the patient realizes he or she has suffered injury.  While it is true that potential plaintiffs in every state must act quickly to ensure their claim is not time-barred by the applicable statute of limitations, there is even greater urgency for potential plaintiffs in New York to act immediately since the limitations period itself is relatively short, and it begins to run relatively early when compared with other states.

Continuous Treatment Doctrine

The continuous treatment doctrine tolls the statute of limitations.  Borgia v. City of New York, 12 N.Y.2d 151, 156 (1962).  The doctrine holds that when a patient continues to be treated by a doctor or hospital, for the same condition that gives rise to the medical malpractice claim, the applicable statute of limitations is tolled until that “continuous treatment” ends.  Id.The continuous treatment doctrine was first adopted in New York in 1962 by the Court of Appeals in Borgia.  In 1975, it was enshrined in CPLR §214-a.

The BorgiaCourt went on to clarify what is meant by continuous treatment by stating: “the ‘continuous treatment’ we mean is treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship.”  Id. at 157.

The case of Nykorchuck v. Henriques, 78 N.Y.2d 255 (1991), provides a stark example of exactly what the Court of Appeals means by “same or related illnesses or injuries” and its strict application to any claim for tolling the statute of limitations.In Nykorchuck, the defendant had continuously treated the plaintiff for endometriosis over the course of several years.  During an office visit, the plaintiff showed a lump in her breast to the defendant, who simply commented “we will have to keep an eye on it.”  Id. at 258.  The defendant continued to treat the plaintiff for the next several years for endometriosis, but he never did anything more regarding the lump.  About six years after the lump was first brought to the defendant’s attention, it was diagnosed as breast cancer.  The plaintiff then filed suit against the defendant for the failure to diagnose and argued that the claim was not time-barred based on the continuous treatment doctrine.  The Court flatly rejected that argument, holding that the doctrine was inapplicable to these facts.  Id. at 260.  The Court pointed out that the continuous treatment was for endometriosis, not breast cancer, and that a continuing relationship between a physician and patient is not sufficient to meet the requirements of the continuous treatment doctrine.  Id. at 259.  Since the Court held that the doctrine did not apply in this case, the plaintiff’s lawsuit was time-barred.  Id. at 260.

The Discovery Rule: Foreign Object Left Inside Patient

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

In New York, the Discovery Rule is extremely limited in its application since it applies only to situations involving foreign objects left inside patients. That is, there is no general Discovery Rule applicable to all types of injuries resulting from alleged medical malpractice.  Rather, under New York law, the Discovery Rule is strictly limited to only situations involving a foreign object left inside the body of a patient.

CPLR §214-a states that when “the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.”  The statute further provides that “the term ‘foreign object’ shall not include a chemical compound, fixation device or prosthetic aid or device.”  If the foreign object Discovery Rule applies to a particular case, the plaintiff may file a medical malpractice claim years and even decades after the date of the alleged medical negligence as long as he or she does so within one year of discovering the foreign object.  For instance, in 2015, the Court of Appeals allowed a plaintiff to file a claim 23 years after the date of the alleged negligent act.  Walton v. Strong, 25 N.Y.3d 554, 574 (2015).

Naturally, a significant amount of litigation takes place focusing on the issue of whether a particular item constitutes a foreign object for purposes of the statute.  The answer to that question will often determine whether a claim is time-barred or not.  To help answer this critical question, the Court of Appeals provided guidance after exhaustively reviewing its prior cases addressing this topic.  In Walton, the Court laid out what it referred to as several general principles distilled from its cases considering the foreign object exception, as follows:

  1. tangible items (clamps, scalpels, sponges, etc.) introduced into a patient’s body solely to carry out or facilitate a surgical procedure are foreign objects if left behind;
  1. the alleged failure to timely remove a fixation device does not transform it into a foreign object;
  1. nor does a fixation device become a foreign object if inserted in the wrong place in the body;
  1. failure to timely remove a fixation device is generally akin to misdiagnosis, and improper placement of a fixation device is most readily characterized as negligent medical treatment; and
  1. the legislature, in enacting CPLR 214-a, directed the courts not to exploit the rationale supporting Flanagan to expand the discovery rule for foreign objects beyond the rare Flanagan fact pattern[2], and explicitly commanded that chemical compounds, fixation devices and prosthetic aids or devices are never to be classified as foreign objects. at 571.

Statute of Limitations with Public Hospital as Defendant

Before filing suit against a public hospital[3], claimant must first serve “written notice of intention to file a claim” within ninety days after the accrual of such claim (or for a wrongful death claim, the date a representative of the decedent’s estate was appointed).  General Municipal Law (“GML”) §50-e(1)(a).  Serving the Notice of Claim is “a condition precedent to the commencement of an action.”  Id.In general, a lawsuit against a public hospital must be instituted within one year and 90 days after the date of the incident or event upon which the claim is based (or for a wrongful death claim, two years from the date of death).  GML §50-e.

Additional Tolling Provisions

Minors

CPLR §208 sets forth the limitations period to file a lawsuit for claimants who are minors (the statute uses the term ‘infancy’) at the time the claim accrues.  Under the statute, the claimant’s infancy tolls the otherwise applicable statute of limitations until he or she attains the age of eighteen.  At that time, the claimant has the standard period of time to file a claim.  For medical malpractice claims, that period of time to do so is two years and six months under CPLR §214-a.

However, CPLR §208 contains an important limitation.  It states that the infancy toll cannot be longer than ten years from the date the cause of action accrues.Accordingly, in reality, a minor has the lesser of either two years and six months after his or her eighteenth birthday or ten years from the date the claim accrued to file a lawsuit.

Insanity

CPLR §208 also tolls the otherwise applicable limitations period for insanity.  If the claimant is under a disability because of insanity at the time the cause of action accrues, the limitations period is tolled for the duration of the period of disability.  Id.However, the limitations period cannot be tolled for longer than ten years.Id.Accordingly, for a medical malpractice claim, a claimant under a disability of insanity has the lesser of either two years and six months after he or she is no longer under such disability or ten years from the date the claim accrued to file a lawsuit.

The term ‘insanity’ is not defined in the statute, so the Court of Appeals was called upon to do so in McCarthy v. Volkswagen of America, Inc., 55 N.Y.2d 543 (1982).  In McCarthy, the Court defined the term to apply “only to those individuals who are unable to protect their legal rights because of an over-all inability to function in society.”Id. at 548.The Court thus rejected the plaintiff’s attempt to invoke the insanity tolling provision based upon a claim of post traumatic neurosis.  Id. at 549.  The Court noted that “the legislative history of CPLR 208 indicates that the Legislature intended the toll for insanity to be narrowly interpreted.”  Id. at 548.

[1]In fact, New York is one of only six states that starts the running of the limitations period at the time of the negligence rather than the discovery of the injury.  Roslund, Gregory.  “Medical Liability and the Emergency Physician: A State by State Comparison—Part 3.”  Common Sense.  American Academy of Emergency Medicine.  March/April 2014, http://www.aaem.org/UserFiles/MarApr14MedicalLiabilityPt3.pdf.  Accessed 9 June 2017.  (see discussion on New York at Page 20.)

[2] In Flanagan, the doctor inserted surgical clamps inside the body of the plaintiff during gall bladder surgery.  Eight years later, after experiencing severe abdominal pain, the plaintiff consulted another doctor who discovered the clamps were still inside her body.  They were surgically removed, and she subsequently brought a medical malpractice action against the doctor who performed the gall bladder surgery.  Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427 (1969).

[3] Under New York law, there are several different types of public entities such as public corporations, public authorities, independent public entities, municipalities, counties, and the state itself (and various agencies and departments thereof).  It is essential to determine precisely which type of public entity is being sued because the laws and rules governing suit against them differ.  Notable differences include, but are not limited to, (1) time limitations; (2) how and where to file late Notice of Claims, if needed; (3) mandatory contents of the various pleadings; (4) proper party upon whom to serve pleadings; (5) how to file and serve pleadings; and (6) presuit procedural requirements.  Discussion of these issues is well beyond the scope of this article, but potential plaintiffs must be aware of this consideration.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally, but not always, triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in New York

New York does not have a generally applicable statute of repose governing medical malpractice claims.  But it effectively has a limited statute of repose with respect to specific types of claimants.  It is contained in CPLR §208 and applies to medical malpractice claims involving minors and those under the disability of insanity.

The statute of limitations for medical malpractice claims is tolled for minors and the insane.  However, the absolute maximum period of time that it can be tolled by CPLR §208 is ten years.  The statute states: “The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues….”  In other words, if the action is not brought within ten years of accrual, the claim is completely extinguished.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in New York

The New York Legislature has conditionally waived sovereign immunity via Section 8 of the Court of Claims Act.  The waiver is conditional because it is expressly conditioned upon the claimant complying with the applicable provisions in Article II Jurisdiction of the Claims Act.  In particular, §9.2conditions jurisdiction of courts to hear a case against the government upon the claimant complying with theprocedural requirements and limitations specified in Article II.

To bring suit against the government (includes New York State, local government, most government agencies, and public hospitals), the claimant must strictly comply with the requirements set forth in the Claims Act.The Court of Appeals warned that because “suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed,” and claimants must meet the literal requirements of the Court of Claims Act.  Dreger v. New York State Thruway Authority, 81 N.Y.2d 721, 724 (1992).

The primary presuit requirement prescribed by Article II is providing a Notice of Claim to the defendant government entity.  Claims Act §10.3.  In a claim for personal injury, it must be filed within 90 days after the accrual of the claim.  Id.General Municipal Law (“GML”)§50-e sets forth the technical requirements and details pertaining to filing of the Notice of Claim[1].  Timely filing of the Notice of Claim is a condition precedent to commencing an action against a government defendant.  GML §50-e(1)(a).  A late Notice of Claim may only be filed upon the court granting, in its discretion, a motion for leave to serve a late Notice of Claim, and if granted, the courtmay extend the time to serve the required Notice of Claim.  GML §50-e(5).  Failure to timely file the Notice of Claim will result in the claim being dismissed.  Argudo v. New York City Health and Hospitals Corporation, 81 A.D.3d 575, 577 (App. Div. 2011).

Negligent Performance of Government Function

Under New York caselaw, even in the absence of a specific applicable waiver of sovereign immunity, an agency of the government may be held liable for the negligent performance of a governmental function where “a special duty to the injured person, in contrast to a general duty owed to the public[,]” exists.  Garrett v. Holiday Inns, 58 N.Y.2d 253, 261 (1983).  A duty to exercise reasonable care towards the plaintiff arises when there is “a special relationship between the plaintiff and the governmental entity.”  Pelaez v. Seide, 2 N.Y.3d 186, 198-199 (2004).

The Court of Appeals declared that:

A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation.Id.

Practitioners in New York caution that this method of imposing liability for civil damages on a government agency is exceptionally complex and intricate.  An in-depth discussion of the process is well beyond the scope of this article.  For readers interested in learning more about this issue, see the Court of Appeals’ landmark decision in McLean v. City of New York, 12 N.Y.3d 194 (2009).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

New York’s Good Samaritan Law

New York’s Good Samaritan Law has been codified in Public Health Law (“PHL”)§3000-a.  It immunizes individuals from civil damages for administering emergency treatment during an emergency situation.  To qualify for protection under the Law, the following four conditions must all be present:

  1. Treatment rendered voluntarily without expectation of monetary compensation;
  1. Treatment rendered at the scene of an accident or other emergency outside a hospital, doctor’s office, or other healthcare facility setting;
  1. Person receiving treatment is unconscious, ill, or injured; and
  1. Good Samaritan acts as a reasonable prudent person would have under the circumstances, e., cannot have acted with gross negligence.

While the Good Samaritan Law does not provide complete immunity from civil damages, it makes successfully suing a Good Samaritan much more difficult by elevating the legal standard for liability from that of ordinary negligence to gross negligence.  The Court of Appeals has described gross negligence as smacking of “intentional wrongdoing” that it “evinces a reckless indifference to the rights of others.”  Sommer v. Federal Signal Corporation, 79 N.Y.2d 540, 554(1992).

Certain categories of healthcare practitioners are expressly excluded from protection under PHL §3000-a.  Instead, they are shielded from civil liability for damages by individual statutes contained in the Education Law as follows:

  • 6,611(6)(Licensed Dentists)
  • 6,527(2) (Licensed Physicians)
  • 6,909(1) (Licensed Registered Professional and Licensed Practical Nurses)
  • 6,545 (Licensed Physician Assistants)
  • 6,737 (Licensed Physical Therapists)

The grants of immunity in the foregoing statutes are identical to that for nonmedical Good Samaritans in PHL §3000-a.  The general Good Samaritan Law as well as all the individual statutes covering healthcare practitioners all contain the following provision: “Nothing in this section shall be deemed or construed to relieve” a licensed healthcare practitioner “from liability for damages for injuries or death caused by an act or omission on the part of such person while rendering professional services in the normal and ordinary course of his or her practice.”  That is, none of the Good Samaritan statutes will immunize healthcare practitioners from civil liability for damages in connection with the rendering of treatment and care during the course of their standard healthcare practice.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, and healthcare related entities scattered throughout New York’s dozens of Consolidated and Unconsolidated Laws.  Below is a non-exhaustive list of some common ones that medical malpractice plaintiffs may encounter while pursuing their claim.

[1]The New York State Court of Claims published an informative three-page guide to the Notice of Claim, which can be accessed at the following link: http://www.nycourts.gov/courts/6jd/forms/srforms/ntc_howto.pdf.

V. Elements of a Medical Malpractice Complaint

In order to commence a medical malpractice lawsuit in a New York state court, the plaintiff must file an initial pleading, referred to as a complaint, with the appropriate court.  In general, the content, format, and procedures regarding complaints are governed by CPLR Article 30 (§§3001-3045) Remedies and Pleading.  Under New York law, a civil action is commenced by filing a complaint in court.  CPLR §3011.The complaint is a formal allegation by the plaintiff containing his or her claims for judgment by the court.  It “shall consist of plain and concise statements in consecutively numbered paragraphs.”  CPLR §R3014.  Separate causes of action must be separately stated and numbered and may be stated regardless of consistency, and causes of action may be stated alternatively or hypothetically.  Id.

Statements in the complaint must “be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transaction or occurrences, intended to be proved and the material elements of each cause of action….”  CPLR §3013.  However, the complaint “need not reveal matters that are commonly within the exclusive knowledge of the treating physician,” but “it should set forth sufficient data for defendant to ascertain what it is that plaintiff is complaining about.”  Weber v. Wise, 86 A.D.2d 891 (App. Div. 1982).

In actions to recover damages for personal injuries or wrongful death, the complaint “shall contain a prayer for general relief but shall not state the amount of damages to which” the plaintiff deems himself or herself entitled.  CPLR §3017(c).  At any time, the defendant may “request a supplemental demand setting forth the total damages to which the” plaintiff deems himself or herself entitled.  Id.The plaintiff must serve the supplemental demand within fifteen days of the request.  Id.

In any action for medical, dental, or podiatric malpractice, the complaint must be accompanied by a Certificate of Merit executed by the attorney for the plaintiff.  CPLR §3012-a(a).  (see next Section for discussion)

Notice of Medical Malpractice Action

Once issue is joined by the defendant with the filing of answers, the plaintiff has 60 days to file with the clerk of the court a Notice of Medical Malpractice Action on a form specified by the chief administrator of the courts.  CPLR §3406(a).  The time for filing may be extended by the court only upon a motion made pursuant to CPLR §2004 (a showing of good cause).  Id.The filing deadline may not be extended by mutual agreement of the parties; only the court may do so.

The purpose behind the Notice of Medical Malpractice Action is to highlight medical malpractice litigation for the special treatment, pre-calendar conferences, and special calendar control rules mandated by CPLR §3406(b) in order “to expedite the resolution of malpractice claims and thereby reduce the cost of malpractice litigation, and to reduce incidents of medical malpractice.”  Tewari v. Tsoutsouras, 75 N.Y.2d 1, 7 (1989).These procedures are intended to aid disclosure, narrow issues, explore settlement, and dispose of meritless claims at an early stage.  22 CRR-NY 202.56.

The Court of Appeals held that dismissal of the complaint is not the appropriate sanction for failure to meet the 60-day deadline to file a Notice of Medical Malpractice Action.  Tewari, 75 N.Y.2d at 11.  The Court pointed out that courts “are empowered to grant the sanction of dismissal only when it has been authorized either by the Legislature or by court rules consistent with existing legislation.”  Id. at 7.  It then announced “we can discern no authority for imposition of the sanction of dismissal for a plaintiff’s noncompliance with the notice requirement….”  Id.Finally, the Court opined that “the imposition of monetary sanctions such as costs and attorney’s fees” is an appropriate punishment for dilatory attorneys.  Id. at 11.

VI. Certificate of Merit

In an effort to deter the filing of meritless and frivolous claims, New York law requires that a medical malpractice complaint be accompanied by a Certificate of Merit.  CPLR §3012-a(a).  It must be executed by the plaintiff’s attorney, and it must declare:

  1. the attorney has reviewed the facts of the case and has consulted with at least one physician in medical malpractice actions … who is licensed to practice in New York or any other state;
  1. the attorney reasonably believes the physician is knowledgeable in the relevant issues involved in the present case; and
  1. the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of the present case.

In the event plaintiff’s attorney was unable to obtain the consultation necessary for a Certificate of Merit prior to the expiration of the statute of limitations for commencing the lawsuit, then the attorney must submit a certificate attesting to that fact along with the complaint.  CPLR §3012-a(a)(2).  The attorney then has 90 days from the date service of the complaint was made to file the Certificate of Merit.  Id.

In the event plaintiff’s attorney was unable to obtain the consultation required for a Certificate of Merit after having made at least three separate good faith attempts with three separate physicians, but none would agree to the requested consultation, then the attorney must submit a certificate attesting to that fact along with the complaint.  CPLR §3012-a(a)(3).

If the complaint relies solely on the legal doctrine of res ipsaloquitur in establishing liability of the defendant, a Certificate of Merit is not required.  CPLR §3012-a(c).  Instead, plaintiff’s attorney is required to execute a certificate “declaring that the attorney is solely relying on such doctrine and, for that reason, is not filing” a Certificate of Merit.  Id.

Only one Certificate of Merit needs to be filed for each action regardless of how many defendants have been named in the complaint or are subsequently named.  CPLR §3012-a(b).  A plaintiff who is representing himself or herself is not required to file a Certificate of Merit.  CPLR §3012-a(f).

Dismissal of Claim for Failure to File Certificate of Merit

There appears to be some disagreement whether the failure to timely file a Certificate of Merit is grounds for dismissing the claim.  The Appellate Divisions are split on the issue despite a Court of Appeals decision that strongly suggests dismissal of the claim is not the proper sanction.

Courts that have rejected the argument that dismissal of the claim is the appropriate sanction for failure to file the Certificate of Merit analogize the issue to the virtually identical argument previously made by defendants regarding the Notice of Medical Malpractice Action.Dye v. Leve, 181 A.D.2d 89 (App. Div. 1992); Tesher v. Sol Goldman, 2011 NY Slip Op 31457-NY (Sup. Ct. 2011); Djeddah v. Williams, 2009 NY Slip Op 51751-NY (Sup. Ct. 2009); andKoppel v. Smith, 147 Misc.2d 1039 (Sup. Ct. 1990).

The Court of Appeals rejected dismissal of the claim as the appropriate sanction for failure to file the Notice of Medical Malpractice Action.  Tewari v. Tsoutsouras, 75 N.Y.2d 1 (1989). In Tewari, the Court announced that “the courts of this State are empowered to grant the sanction of dismissal only when it has been authorized either by the Legislature or by court rules consistent with existing legislation.”  Id. at 7.  In rejecting dismissal of the claim for failure to file the Notice of Medical Malpractice Action, the Court concluded “we can discern no authority for imposition of the sanction of dismissal for a plaintiff’s noncompliance with the notice requirement….”  Id.

Similarly, courts cite the reasoning articulated in Tewari to reject arguments for dismissing claims due to the failure to file the Certificate of Merit.  In Dye, the Court stated: “We agree that a failure to comply with CPLR 3012-a [Certificate of Merit] is analogous to noncompliance with CPLR 3406(a) [Notice of Medical Malpractice Action] and that the sanction of dismissal is therefore unwarranted.”  Dye, 181 A.D.2d at 90.  Also, in Djeddah, the Court concluded “CPLR §3012-a does not include a sanction or remedy for plaintiffs who fail to file the requisite Certificate of Merit.  If this Court were to find that the plaintiff failed to comply, the remedy would be to give her an opportunity to file at this point, and not to simply dismiss the action.”

Nevertheless, it must be noted that despite the Court of Appeals’ decision in Tewari it appears that the “Appellate Divisions in the First and Fourth Departments continue to follow the Santangelo line of reasoning permitting the dismissal of a plaintiff’s complaint for failure to file a certificate of merit.”  Koppel, 147 Misc.2d at 1042.  In Santangelo, the Court concluded that dismissal of the claim for failure to file the Certificate of Merit is warranted absent plaintiff showing a reasonable excuse for the failure.  Santangelo v. Raskin, 137 A.D.2d 74, 79 (App. Div. 1988). But following the Tewari decision, the Appellate Division in the Second Department decided that it could no longer follow its own decision in Santangelo because the reasoning in reaching its conclusion was explicitly rejected by the Court of Appeals in TewariKolb v. Strogh, 158 A.D.2d 15, 22-23 (App. Div. 1990).

Despite the Appellate Division in the Second Department’s own rejection of its decision in Santangelo, both the Appellate Divisions in the First and Fourth Departments persist in following the reasoning and conclusion in Santangelo even after Tewari in the Perez v. Lenox Hill Hospital, 159 A.D.2d 251 (App. Div. 1990), and Kerns v. Panahon, 158 A.D.2d 936 (App. Div. 1990), line of cases, respectively.  As recently as February of 2017, in applying its understanding of New York law, the United States District Court, Southern District of New York dismissed a medical malpractice complaint for failure to submit the Certificate of Merit or present a reasonable excuse for the failure.  Crowhurst v. SZCZUCKI, No. 16-cv-00182 (JGK) (S.D.N.Y. Feb. 7, 2017). That is the reasoning and result in Santangelo and followed by Kerns, Perez, and their progeny.

Until the Court of Appeals rules directly on this issue, the Appellate Divisions will likely remain split.  Accordingly, plaintiffs must be cognizant of which Department of the Appellate Division has jurisdiction over the court in which they file their complaint if they have any reason to suspect that the timely filing of the Certificate of Merit will become an issue.

VII. Ex Parte Communications with Non-party Treating Physicians

In a New York medical malpractice case, the defendant’s lawyers have the right to interview the plaintiff’s non-party treating physicians privately.  Arons v. Jutkowitz, 9 N.Y.3d 393, 402 (2007).  Privately means outside the presence of the plaintiff’s lawyers, which is referred to as an ex parte communication.  In Arons, the Court of Appeals gave its blessing to such ex parte interviews with the plaintiff’s non-party physicians by the defendant’s lawyers as part of the informal discovery process.  Id. at 409.

The Court of Appeals commented on the importance of informal interviews (ex parte interviews) in the litigation process in the 1990 case of Niesig v. Team, 76 N.Y.2d 363 (1990).  In that case, the Court observed “informal discovery of information that [might] serve both the litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes.”  Id. at 372.  The Court added that expensive “formal depositions that may deter litigants with limited resources, or even somewhat less formal and costly interviews attended by adversary counsel, are no substitute for such off-the-record [ex parte interviews] efforts to learn and assemble, rather than perpetuate, information.”  Id.

In addressing concerns about the potential for improper disclosures beyond the scope of the legitimate discovery process, the Court dismissed them by placing faith in the professionalism of the lawyers involved, stating: “an attorney who approaches a non-party treating physician (or other health care professional) must simply reveal the client’s identity and interest, and make clear that any discussion with counsel is entirely voluntary and limited in scope to the particular medical condition at issue in the litigation.”Arons, 9 N.Y.3d at 410.

VIII. Expert Medical Witnesses

Who Qualifies as An Expert Medical Witness

To qualify as an expert medical witness permitted to provide opinion testimony in a New York medical malpractice case, the proposed expert “should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable.”  Matott v. Ward, 48 N.Y.2d 455, 459 (1979).  The trial court has the responsibility to determine whether an individual is qualified to testify as a medical expert.  Felt v. Olson, 74 A.D.2d 722 (App. Div. 1980).The question of the “extent of an expert’s qualification is a fact to be considered by the trier of the fact when weighing the expert testimony.”  Id.

The trier of fact may accept or reject the opinion of an expert.  Id. at 723.  But that is a separate and distinct issue from whether the individual is qualified to testify as an expert in the first place.  An individual’s qualifications to serve as an expert medical witness is a question for the trial court to answer; the weight to be given to an expert witness’ testimony is a question for the jury to answer.  Payant v. Imobersteg, 256 A.D.2d 702, 704 (App. Div. 1998).

Expert Medical Witness Testifying Outside of Specialization

There is no requirement that an expert medical witness must be a specialist in a particular field in order to testify on the subject of accepted medical practices within that field.  Postlethwaite v. United Health Services Hospitals, Inc., 5 A.D.3d 892, 895 (App. Div. 2004).  As long as an individual “possesses the requisite knowledge and expertise to make a determination on the issue presented, he need not be a specialist in the field.”  Matter of Enu v. Sobol, A.D.2d 302, 304 (App. Div. 1991).

In Postlethwaite, the Court allowed an anesthesiologist to serve as an expert witness against the decedent’s attending physician and gastroenterologist “regarding certain accepted medical practices in the fields of internal medicine, gastroenterology, general surgery and nursing….” Postlethwaite, 5 A.D.3d at 895.  According to the Court, he was qualified to do so based upon “his medical training, a year-long residency in internal medicine and, most notably, his experience interacting with these professionals in the course of his anesthesiology practice.”  Id.

However, when an expert medical witness seeks to provide opinion testimony outside his or her specialization or practice area, “a foundation must be laid tending to support the reliability of the opinion rendered.”  Mustello v. Berg, 44 A.D.3d 1018, 1019 (App. Div. 2007).  In Mustello, the plaintiff submitted opinion testimony of a general surgeon to contest the defendant’s expert’s testimony on the gastroenterological treatment administered to the plaintiff.  The Court rejected the plaintiff’s expert as being qualified to provide expert opinion testimony on the issue because he “failed to lay the requisite foundation for his asserted familiarity with the applicable standards of care.”  Id.He never explained whether he had any specific training or expertise in gastroenterology, whether he had familiarized himself with the relevant literature, or how he became familiar with the subject matter.  Accordingly, the Court stated that his expert opinion “was of no probative value.”  Id.

Degree of Certainty Necessary for Testimony to be Considered Reliable

Once the trial court has determined that an expert medical witness is qualified to provide opinion testimony on specific issues, it must then determine whether the expert exhibits “a degree of confidence in his conclusions sufficient to satisfy accepted standards of reliability.”  Matott, 48 N.Y.2d at 459.  The term ‘reasonable degree of medical certainty’ is one expression of the standard that is commonly used; however, it is not the only way in which the required level of certainty can be stated.  Id. at 460.  There are no magic words whose invocation will automatically satisfy the standard.  Instead, the standard is satisfied by “any formulation from which it can be said that the witness’ ‘whole opinion’ reflects an acceptable level of certainty.”  Id.

After analyzing several lines of cases, the Court of Appeals distilled the various principles and decisions to formulate the following general standard: expert medical opinion testimony is reliable if it is reasonably apparent that the expert intends to signify a probability supported by some rational basis. Id. at 461.  Experts’ use of terms like ‘could produce’ or ‘it is possible’ “does not of itself destroy the probative force of the testimony” as long as it is supported by a detailed explanation and additional facts which add to it reasonableness and probable correctness.  Matter of Miller v. National Cabinet Company, 8 N.Y.2d 277, 282 (1960).

In Matott, the expert medical witness qualified his answers when questioned whether the plaintiff’s injuries were the result of the accident at issue in the case.  In addition, he would not say with certainty that the accident was the sole cause of the plaintiff’s injuries, and he did not use the term‘reasonable degree of medical certainty.’Id. at 463.  Nevertheless, the Court concluded that his testimony was reliable and thus the issue of causation could be submitted to the jury.  Id.  The Court determined that “considering the totality of his testimony rather than focusing narrowly on single answers,” his testimony conveyed assurance “that it was not based on either supposition or speculation.”  Id.

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1]follow one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

New York uses the Frye standard.   The Court of Appeals made this pronouncement in 2010, holding “that the test is one of general acceptance … in the relevant technical, scientific or medical community.”  Giordano v. Market America, Inc., 15 N.Y.3d 590, 601 (2010).  The Court went on to reiterate“[o]ur courts follow Frye … in making ‘general acceptance’ the test for admitting expert testimony about scientific principles or discoveries.”  Id.

[1]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

IX. Comparative Negligence

New York is a pure comparative negligence state.  Under New York law, fault is determined and apportioned among the claimant and defendants by the trier of fact, and “the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”  CPLR §1411.  Claimant’s culpable conduct is “an affirmative defense to be pleaded and proved by the party asserting the defense.”  CPLR §1412.  This means that the defendant(s) has to raise comparative negligence as a defense and has the burden of proving that the claimant’s own negligence contributed to his or her injury.

Under the doctrine of pure comparative negligence, fault is determined and apportioned among the claimant and defendants by the trier of fact, and how much compensation the claimant can recover is limited by his or her relative share of fault.  Soto v. City of New York, 139 A.D.2d 551 (App. Div. 1988).  Accordingly, the claimant’s recovery is reduced by his or her assigned percentage of fault.

For example, in Soto,the jury determined that the plaintiff was 70% at fault in contributing to his injuries, so the trial court reduced the total damage award by 70%.  Id.As a result, the maximum amount the plaintiff could receive was 30% of the total damages awarded by the jury.  Thus, if the total monetary recovery were $100,000, the plaintiff would be entitled to only 30% of that amount or $30,000.  Notice that the plaintiff in Sotowas actually deemed to be at greater fault than the defendant.  Despite that fact, in a pure comparative negligence system, that is not a bar to recovery.

X. Court Adjustments to Damage Awards

In contrast to the majority of states that impose an arbitrary statutory limit on, at least, non-economic damages that plaintiffs may recover in medical malpractice cases, New York does not do so.  However, both trial and appeals courts in New York have the statutory authority to set aside a jury award and increase or decrease it under certain limited, narrowly defined situations.  Although New York law does not impose an artificial cap on damage awards regardless of the severity of the injury, jury awards are subject to judicial review and adjustment.  Those damage awards that lie outside the norm based on cases involving similar facts and circumstance are subject to upward or downward adjustment by either the trial or appeals court.

Under CPLR §4404(a), in the interest of justice, the trial court has the authority to set aside the jury’s verdict if it is contrary to the weight of the evidence.“Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors.”  Nicastro v. Park, 113 A.D.2d 129, 132-133 (2nd Dept. 1985).  It should be done only if a jury could not have reached its decision “by any fair interpretation of the evidence.”  Id. at 136.  Although deference must be given to the jury’s determination, the court has “a breadth of discretion which obviously varies with the facts and events in each case.”  Id.

Similarly, CPLR §5501(c)authorizes appeals courts to adjust jury awards.  It states “the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.”In making that determination, the method of review used by courts is to analyze the jury award against comparable awards.  Donlon v. City of New York, 284 A.D.2d 13, 16 (1st Dept. 2001).  “The review explicitly mandated by CPLR §5501(c) … requires us to determine what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries[1].”Id. at 18.

XI. Limitations on Attorney Fees

Contingency Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingency fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingency fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3)the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Statutory Limitations

For purposes of the statute, contingent fees are defined as “any attorney’s fee in any claim or action for medical, dental or podiatric malpractice, whether determined by judgment or settlement, which is dependent in whole or in part upon the success of the prosecution by the attorney of such claim or action, or which is to consist of a percentage of any recovery, or a sum equal to a percentage of any recovery, in such claim or action.”  Judiciary Law (“JUD”)§474-a(1).

New York imposes statutory limitations on attorney contingency fees in medical malpractice cases based on a sliding scale tied to the amount recovered.  JUD§474-a(2)establishes the following limitations:

  1. 30% of the first $250,000 of the sum recovered;
  1. 25% of the next $250,000 of the sum recovered;
  1. 20% of the next $500,000 of the sum recovered;
  1. 15% of the next $250,000 of the sum recovered; and
  1. 10% of any amount over $1,250,000 of the sum recovered.

The limitation percentages are computed on the “net sum recovered after deducting from the amount recovered expenses and disbursements for expert testimony and investigative or other services properly chargeable to the enforcement of the claim or prosecution of the action.”  JUD §474-a(3).  The subsection also contains further technical details on how to calculate the attorney fee.

Departure from Fee Schedule Due to Extraordinary Circumstances

In certain very limited circumstances, the statutory fee schedule listed in JUD §474-a(2) may be inadequate to fairly compensate an attorney.  In recognition of this possibility, JUD §474-a(4) permits a plaintiff’s attorney who “believes in good faith that the fee schedule … because of extraordinary circumstance will not give him adequate compensation” to apply to the trial court for an increased fee.  If extraordinary circumstances are found, the trial court, in its discretion, is authorized to “fix as reasonable compensation for legal services rendered an amount greater than that specified in the schedule” provided that the greater compensation does not exceed the fee fixed by retainer agreement.  Id.

The analysis begins with the presumption that the statutory fee schedule is reasonable in all medical malpractice cases.  Gair v. Peck, 6 N.Y.2d 97, 113, 114 (1959).  The attorney requesting greater compensation bears the burden of rebutting that presumption by establishing that the fee schedule is inadequate to compensate him or her for the legal services actually performed in the particular case.  Id.

Prior to departing from the statutory fee schedule, “the court must make a threshold finding that a departure from the fee schedule is justified because the authorized fee did not equitably compensate counsel.”  Yalango v. Popp, 84 N.Y.2d 601, 608 (1994).  In making that determination, the court must examine whether the award, viewed as a whole or broken down to its hourly equivalent, equitably compensates the attorney for “the amount of time reasonably and necessarily spent” in litigating the claim.  Id.

The Court of Appeals opined that the fee schedule may be inadequate “where the case involves an extremely complicated procedural history or where plaintiff’s counsel is required to expend an inordinate amount of time in pursuing the” claim.  Id. Once the threshold showing is made by the attorney, he or she “must then justify a departure from the fee schedule by demonstrating that extraordinary circumstances caused the statutory fees to be unreasonable in the particular case.”  Id.

The Court of Appeals made note of the fact that “degree of diligence or success achieved … do not render a case extraordinary for purposes of” JUD §474-a(4)Id. at 609.  The statutory fee schedule is set at levels calculated to provide “ample compensation for the best efforts and services of competent counsel.”  Gair, 6 N.Y.2d at 103.

Contingency Fee for Infants[2] (Minors)

According to JUD §474-a(5), contingency fee arrangements for medical malpractices claims brought on behalf of an infant is governed by JUD §474, not JUD §474-a.  JUD §474 requires any attorney representing an infant on a contingent fee basis to submit an application for court approval of the arrangement.  Any agreement regarding attorney fees entered into by the infant’s “guardian is advisory only” since the amount of the attorney fee is ultimately set by the court.  Werner v. Levine, 276 N.Y.S.2d 269, 271 (N.Y. Sup. Ct. 1967).

Under JUD §474, the appropriate amount as an attorney fees is “a suitable amount out of the recovery, award, compromise or settlement obtained through his efforts as attorney on behalf of the infant.”  As the general rule, New York courts acknowledge attorney fees amounting to one-third of the total recovery in these types of cases constitute “the usual and customary level.”  Liss v. McCrory Stores Corp., 7 A.D.2d 738, 738 (2nd Dept. 1958).  On the other hand, attorney fees in excess of one-third of the total recovery are considered unreasonable.  Scolavino v. State, 74 N.Y.S.2d 573, 575 (N.Y. Ct. Cl. 1947).

XII. New York State Medical Indemnity Fund

The New York State Medical Indemnity Fund was established in 2011.  The Department of Financial Services(“DSF”) is the designated administrator of the Fund.  PHL §2999-g states the “purpose of the fund is to provide a funding source for future health care costs associated with birth-related neurological injuries, in order to reduce premium costs for medical malpractice insurance coverage.”On its website, the DSF adds: “Enrollees of the Fund are plaintiffs in medical malpractice actions who have received either court-approved settlements or judgments deeming the plaintiffs’ neurological impairments to be birth-related.”Those plaintiffs are referred to as a ‘qualified plaintiff’ under the statute.  PHL §2999-h(4).

For purposes of the Fund, PHL §2999-h(1) defines birth-related neurological injury as:

an injury to the brain or spinal cord of a live infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation or by other medical services provided or not provided during delivery admission that rendered the infant with a permanent and substantial motor impairment or with a developmental disability as that term is defined by section 1.03 of the mental hygiene law, or both. This definition shall apply to live births only.

In practice, the Fund relieves certain defendants in birth-related neurological impairment cases from the obligation to pay the future medical expenses component of any post-April 1, 2011 judgment or settlement.  PHL §2999-j.  The trial court is required to allocate the proceeds between Fund damages (all future healthcare costs) and non-Fund damages (pain and suffering and lost earnings).  Id.“For actions covered by the statute, payments of future medical expenses by the Fund are obligatory[,] and courts are required to amend ‘settlement agreements’ or judgments to comply with its terms.”  Mendez v. New York and Presbyterian Hospital, 34 Misc.3d 735, 738 (Supp. Ct. 2011).

The Mendez case remains one of the most influential Fund cases; it was the case that first set forth the allocation process between Fund damages and non-Fund damages in detail for practical use as well as the proper treatment of attorney fees attributable to the two different categories of damages.  To examine the allocation of damages and attorney fees in an actual case, see Mendez, 34 Misc.3d at 742-43.

[1]For an example of the type of case-by-case comparison of injuries and damage amounts courts engage in when deciding whether to set aside a jury award, see the following discussion from Lee v. City of New York, 2015 NY Slip Op 51951-NY (Sup. Ct. 2015).

In support of the defendants’ contention that the majority of the $28 million jury award deviates materially from what would be reasonable compensation, counsel directs the court’s attention to several cases where the plaintiff allegedly sustained similar or more significant injuries than those sustained by Lee and whose awards were significantly lower than that of the plaintiff: Grinberg v. C & L Contr. Corp., 107 AD3d 491 (1st Dept. 2013), 63 year-old plaintiff suffered severe injuries to his left leg and a spiral fracture to the fibula, near the knee, verdict of $500,000 for past pain and suffering and $450,000 for future pain and suffering; Hernandez v. Ten Co., 102 AD3d 431 (1st Dept. 2013), plaintiff sustained fractures to his tibia and fibula, verdict of $1 million sustained for past pain and suffering over eight years and $2.166 million for future pain and suffering over 25.8 years, as opposed to plaintiff Lee who was given a life expectancy of 7 years; and Huang v. NYCTA, 49 AD3d 217 (1st Dept. 2008), 18 year-old plaintiff who suffered crush injuries to her left hip and leg, including multiple fractures and spinal nerve injury, award for future pain and suffering reduced from $12.25 million to $5 million.

[2] For purposes of the CPLR, the term ‘infant’ “means a person who has not attained the age of eighteen years.”  CPLR §105(j).