The trust you placed in a doctor or hospital has been broken. An act of medical negligence left you with a serious injury, a worsened condition, or the loss of a loved one.
Now, alongside your physical and emotional pain, you face a profound sense of betrayal and a mountain of questions. You need to know what happens in a malpractice lawsuit because you understand that holding a negligent medical professional accountable is your only path toward justice and financial stability.
The legal process is methodical and demanding, a journey that unfolds in distinct stages, each requiring meticulous preparation and unwavering advocacy.
Schedule a Free Case Evaluation
Table of contents
Key takeaways in malpractice suits
- A medical malpractice lawsuit is a complex legal process that begins long before a case is filed in court, starting with a thorough investigation and review by medical professionals.
- In New York, you cannot file a malpractice lawsuit without a "Certificate of Merit," a formal declaration from your attorney, made after consulting with a qualified medical professional, that there is a reasonable basis for the claim.
- The "discovery" phase is the longest part of the process, where both sides exchange information and evidence through written questions, document requests, and depositions under oath.
- Most medical malpractice cases are resolved through a negotiated settlement before ever reaching a trial, but preparing the case as if it will go to trial is what creates the leverage for a fair settlement.
The First Step: The Pre-Lawsuit Investigation
Before a single legal document is filed with the court, a tremendous amount of work must happen behind the scenes. A medical malpractice claim is not something that can be initiated on a hunch.
It must be built on a solid foundation of medical evidence and professional opinion. This initial phase is all about determining if your case has merit.
Gathering and reviewing your medical records
The entire story of your medical care is contained within your records. The first action your legal team will take is to gather every single page of your medical chart from the doctors, hospitals, and clinics involved in your treatment.
This includes:
- Doctors’ notes and consultation reports
- Nurses’ logs and charts
- Lab results and diagnostic imaging (X-rays, MRIs, CT scans)
- Surgical reports and anesthesia records
- Prescription histories
These documents create a detailed timeline of your care and provide the raw data needed to identify where the negligence occurred.
Consultation with medical professionals
Once your records are compiled, they are reviewed by an independent medical professional. Your medical malpractice attorney will consult with a doctor, surgeon, or nurse who practices in the same field as the healthcare provider you believe was negligent.
This reviewing professional will analyze the records to determine if the care you received fell below the accepted "standard of care." The standard of care is the level and type of care that a reasonably competent and skilled healthcare professional, with a similar background and in the same medical community, would have provided under the circumstances.
This step is not just a suggestion; in New York, it is a legal requirement.
New York’s Certificate of Merit Requirement
You cannot simply sue a doctor because you had a bad outcome. New York law requires a crucial step to prevent frivolous lawsuits. According to New York Civil Practice Law & Rules § 3012-a, when your attorney files the lawsuit, they must also file a "Certificate of Merit."
This is a legal document in which your attorney certifies that they have reviewed the facts of the case and consulted with at least one licensed physician who they reasonably believe is knowledgeable in the relevant medical issues. Based on this consultation, the attorney must state that there is a reasonable basis to start the lawsuit.
Filing the lawsuit
Once the investigation is complete and the Certificate of Merit is secured, the formal lawsuit can begin. This phase moves the case from a private investigation into the public court system.
The summons and complaint
The lawsuit officially starts when your attorney files two documents with the court: the Summons and the Complaint. The Complaint is a detailed legal document that lays out the facts of your case.
It identifies you (the plaintiff) and the healthcare provider (the defendant). It describes what the doctor did wrong, how their negligence caused your injuries, and the damages you have suffered as a result.
The Summons is a notice that officially informs the defendant they are being sued.
The defendant’s response
After being served with the Summons and Complaint, the doctor and their legal team (provided by their malpractice insurance carrier) have a specific amount of time to file a response. This response is called the "Answer."
In the Answer, the defendant will typically deny most of the allegations in the Complaint and may raise various legal defenses. With the filing of the Answer, the battle lines are officially drawn.
Schedule a Free Case Evaluation
The discovery phase
Discovery is the longest and often most intense phase of a malpractice lawsuit. It is the formal process where both sides exchange information and evidence. The goal of discovery is to allow each party to see the strengths and weaknesses of the other side’s case, which often encourages a settlement.
Written discovery and document requests
The process usually begins with written questions and requests. Your attorney will send "Interrogatories" to the defendant, which are written questions that the doctor must answer under oath.
They will also send a "Request for Production of Documents," demanding the defendant turn over evidence like their internal policies, phone records, or other relevant documents. The defendant’s lawyers will send similar requests to you.
The deposition
A deposition is a formal, out-of-court session where a witness gives sworn testimony. The witness, called the deponent, is placed under oath and answers questions from the opposing attorney. A court reporter records everything that is said, creating a written transcript.
Depositions are a critical part of discovery. They allow your attorney to question the defendant doctor directly about their decisions and actions. They also allow the defense attorney to question you about your injuries and how they have impacted your life.
Key individuals are often deposed during a malpractice case.
- You, the plaintiff: You will tell your story in your own words, explaining your medical history and the impact of your injuries.
- The defendant doctor(s): Your attorney will question the doctor in detail about the medical care they provided to you.
- Other medical staff: Nurses, technicians, or other physicians who were involved in your care may also be deposed.
- Medical reviewers: Each side will have medical professionals who will provide testimony about the standard of care and the cause of your injuries.
This testimony is crucial. It locks witnesses into their story and can reveal critical information that helps build your case for a settlement or trial.
Resolution: Settlement or trial
As the discovery phase concludes, both sides have a much clearer picture of the evidence. At this point, the focus shifts toward resolving the case.
Settlement negotiations
The vast majority of medical malpractice cases do not go to trial. Instead, they are resolved through a settlement. A settlement is a formal agreement where the defendant’s insurance company agrees to pay you an agreed-upon amount of money.
In exchange, you agree to end the lawsuit. Negotiations might happen at any point but often intensify after depositions are complete. Your attorney will present the strength of your case to the insurance company to fight for fair compensation.
MediationSometimes, the parties agree to mediation to help reach a settlement. Mediation is a confidential process where a neutral third party, called a mediator, helps the two sides communicate and find common ground. The mediator does not make any decisions but instead works to facilitate an agreement that both parties can accept.
Preparing for trial
If the insurance company refuses to make a fair settlement offer, your attorney will prepare to take your case to trial. This involves preparing witnesses, organizing evidence, and developing a legal strategy to present to a judge and jury.
While going to trial is rare, the willingness and ability to do so is what gives your attorney the leverage to secure a fair settlement during negotiations.
FAQ for What Happens in a Malpractice Lawsuit?
How long does a medical malpractice lawsuit take?
There is no simple answer. Due to the complexity of the investigation and the discovery process, these cases take a significant amount of time. A case that settles might take one to three years to resolve. A case that proceeds to trial could take even longer. This timeline is necessary to build the strongest possible case.
How much does it cost to file a malpractice lawsuit?
Reputable personal injury law firms handle medical malpractice cases on a contingency fee basis. This means you pay no fees upfront. The law firm advances all the costs of the litigation, which can be substantial, including fees for medical reviewers and court filings. The firm only receives a fee if and when they win a settlement or verdict for you.
What is the statute of limitations for medical malpractice in New York?
In New York, the statute of limitations for medical malpractice is generally two years and six months from the date of the negligent act or from the end of a continuous course of treatment. There are some exceptions, so it is vital to speak with an attorney as soon as you suspect negligence.
Should I get legal advice from an AI tool about my malpractice case?
Do not rely on AI chat tools for legal advice. An AI tool might provide generic information, but it does not understand the complexities of your medical records or the specific requirements of New York malpractice law. Relying on them for legal advice may lead you to make costly errors. Always consult a qualified attorney for guidance on your situation.
Your Path to Accountability
The journey through a medical malpractice lawsuit is a marathon, not a sprint. It requires patience, resilience, and a legal team with the resources and determination to see it through.
The process is designed to uncover the truth and hold negligent healthcare providers accountable for the harm they cause. You do not have to walk this path alone.
The attorneys at Queller Fisher have been fighting for victims of medical negligence for over 60 years. We are a low-volume, high-value firm, meaning we dedicate our full attention and resources to several serious injury cases.
Our meticulous preparation and reputation for success are why other lawyers throughout New York City refer their most complex malpractice cases to us.
We are available 24/7 for a free, confidential consultation.
If your injuries prevent you from coming to our office, we will come to you.
Schedule a Free Case Evaluation
New York City Office: (212) 406-1700
Bronx Office: (718) 892-0400