Unlike other causes of action, a medical malpractice case in New York must have an expert review the matter before you file the action. This is called a certificate of merit and is required by New York Civil Practice Law and Rules Section 3012-a. This includes dental and podiatric malpractice cases as well.
This means that your medical records and the facts of what occurred must be sent to and reviewed by at least one physician who is licensed to practice medicine and is knowledgeable in the relevant issues. Your attorney must consult with the physician after his or her review of the records and facts, and your attorney must have a reasonable basis for the commencement of such action that it has merits. Some medical malpractice attorneys take liberty in charging the client for this review. However, I will never do that and the best attorneys generally stray away from that practice; avoid any upfront costs!
Sometimes, you cannot always get the review before the statute of limitations period expires. In that case, this law permits you to file the lawsuit but then supplement it with the certificate of merit within 90 days.
If your medical provider is also failing to cooperate, this section will not bar your claim. If your attorneys makes medical record requests and has not received them yet, once you do get the medical records you have 90 days from the date you receive them to comply with this section.
This is an important section for multiple reasons. It brings only meritorious claims into the system. It also keeps the dichotomy between medicine and law separate, as lawyers do not know what the standard of care for doctors is and vice versa. Thus, it respects that two professionals; what might look like malpractice to a lawyer might not be malpractice to another doctor.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.