Medical malpractice law in New York includes a two and a half year statute of limitations, a pure comparative negligence doctrine, and any vicarious liability on the part of the hospital is a result of the control the hospital exercises over the practitioner, and expert witnesses are not deposed before trial commences.
Any medical malpractice action must be brought within two and a half years from the act or omission, or from the end of the continuous treatment of which the act or omission was part. Foreign object cases may be brought up to one year from the date when the foreign object is discovered. A claimant's incompetency (insanity or infancy) belays the statute of limitations until the disability ceases but can only extend up to ten years. Wrongful death suits must be brought within two hears of the death in question.
| New York State Tort Law | |
| Statute of Limitations | Two and a half years from date of original injury or one year after injury is discovered. |
| Damage Award Limits | No limits |
| Joint Defendant Liability | Proportionate liability for defendants for noneconomic damages except in cases where defendant is found to be more than 50% at fault. Where economic damages are concerned, defendants may be jointly liable. |
| Expert Witness | Expert must submit consultation within 90 days of claim being filed. |
| Attorney Fees | Fees based on a sliding scale. Maximum percentage for first $250,000 is 30%, for the next $250,000 it is 25%, for additional $500,000 it is $500,000, additional $250,000 it is 15%, and 10% for anything over $1,250,000. |
New York is a pure comparative negligence state, which means a claimant's negligence, no matter how great, will not bar recovery, but will reduce damages proportionally.
New York generally holds joint tortfeasors both jointly and severally liable. Any joint tortfeasor whose liability is 50 percent or less is severally liable only for the claimant's non-economic losses. Non-parties are not counted.
Hospitals are not vicariously liable for the acts of non-employee members of the medical staff in New York. A hospital can, however, become liable because of the control it exercises over independent contractors.
A claimant must file a certificate that verifies the claimant's attorney has consulted an expert witness or, alternatively, that such an expert could not be obtained within the 90 days allowed for filing. This does not apply when res ipsa loquitur is the only theory alleged.
Expert testimony will, however, be required at trial, unless the matter Is within the ordinary experience and knowledge of laymen. Expert witnesses are generally not deposed prior to trial, and while qualifications must be disclosed the expert's identity need not be.
New York does not limit recoverable damages.
The State of New York has waived its immunity, and that of its political subdivisions.
A defendant can concede liability in exchange for an agreement to arbitrate damages, but arbitration is not otherwise mandatory.