Just like most of the states, a New York medical malpractice lawsuit can be more complicated than other kinds of civil cases (especially when compared with other injury-related legal claims, such as those stemming from a car accident). This isn't only because of the complexity of the medical and legal issues inherent in these kinds of lawsuits.
The person filing a medical malpractice lawsuit (the plaintiff) in New York needs to comply with special procedural rules. in an effort to deter the filing of non-meritorious or downright frivolous claims these safeguards have been put in place. Rule 3012-a of the New York Civil Practice Law and Rules is the most daunting of these where it is stated that If the attorney is unable to obtain the required consultation with an expert in time to also comply with the lawsuit filing deadline, the attorney may instead file the certificate within 90 days after the complaint is served on the defendant health care provider.
What stated in Rule 3012-a is in any lawsuit alleging injury caused by medical malpractice, along with the initial complaint (that's the document that starts the lawsuit and lays out the plaintiff's claims), the plaintiff's attorney must file a certificate declaring that:
• He or she has reviewed the case and consulted with one health care expert (usually a physician) at least who is licensed to practice (in New York or elsewhere), and
• It is reasonably believed by the attorney that the expert is knowledgeable as to the medical issues relevant to the plaintiff's claims, and
• On the basis of this review of the case and the consultation with the expert, the attorney has concluded that there is a "reasonable basis" for the lawsuit.
In case the attorney is unable to obtain the required consultation with an expert in time to also comply with the lawsuit filing deadline set by the New York statute of limitations for medical malpractice cases, instead of filing the certificate alongside the complaint, the attorney may file it within 90 days after the complaint is served on the defendant health care provider.
In case the attorney is unable of complying with the consultation requirement after making three separate "good faith" attempts with three different physicians, because none would agree to the consultation, the attorney must declare so in the certificate that accompanies the complaint.
There are a few more notes on Rule 3012-a:
• Only one certificate needs to be prepared and filed, regardless of how many defendants are named in the medical malpractice lawsuit.
• In case the attorney is relying on a liability argument known as res ipsa loquitur, which is a Latin term that basically translates as "the thing speaks for itself," the attorney must state so in the declaration. As an example we can say of a medical malpractice case that might rely on res ipsa loquitur is one where a medical instrument is left in a patient after a procedure. This fact, in other words, in and of itself means that someone was negligent.
• In case the claimant is not represented by an attorney, the requirement for the certificate does not apply, and the claimant need only file the complaint.
A NY medical malpractice attorney will undoubtedly be well-versed in these rules and will have the experience and skills to anticipate and navigate them. But for getting an idea of what this document might look like; check out a sample certificate of Merit from the New York State Bar Association.
In the end, keep in mind that a medical malpractice plaintiff also needs to make sure that the lawsuit is filed in compliance with New York's statutory filing deadlines.
