How to Sue a Doctor for Malpractice

How to Sue a Doctor for Malpractice
How to Sue a Doctor for Malpractice

When you’ve suffered injuries or harm to your health due to careless or reckless actions by your doctor, you may have the right to pursue financial compensation and accountability in a medical malpractice claim.

However, suing a doctor for medical malpractice involves a more complex process than other personal injury claims.

Working with an experienced medical malpractice attorney can help ensure you follow the procedures for filing a medical malpractice claim and have a compelling case that can give you the best chance of obtaining maximum financial recovery for your harm and loss.

Understanding Medical Malpractice

Medical malpractice happens when a patient experiences an adverse outcome of medical care because of the wrongdoing of a healthcare provider. Not every adverse outcome occurs due to malpractice. Instead, a healthcare provider commits malpractice when they provide treatment to a patient that fails to meet the applicable standard of care.

Although each patient’s case involves unique specifics for the standard of care, medical professionals generally define the standard of care as the treatment decisions and actions that other medical professionals of similar training and experience would undertake in identical circumstances.

Thus, the law will not hold a healthcare provider liable for malpractice if other providers would have made the same or similar treatment decisions and actions in the patient’s case.

But when a provider’s treatment falls outside the scope of the standard of care and a patient suffers harm, that provider may bear liability in a medical malpractice claim.

To prove liability for medical malpractice, an injured patient must show that:

  • They had a provider-patient relationship with the allegedly negligent healthcare provider.
  • The provider owed them a duty of care under the applicable standard of care.
  • The provider breached this duty by rendering treatment that failed to comply with the standard of care.
  • The substandard care caused the patient to suffer financially compensable injuries or losses.

Types of Medical Malpractice

While substandard care can lead to a medical malpractice claim, some medical errors occur more frequently than others. Some of the most common types of medical malpractice claims include:

Misdiagnosis/Delayed Diagnosis

Many diseases share common symptoms or have murky diagnostic criteria, making it challenging for doctors to diagnose a condition correctly. Doctors may incorrectly diagnose a patient with a more common condition instead of the rarer, more severe condition the patient has.

Misdiagnosis or delayed diagnosis may cause patients to lose critical treatment opportunities due to the progression of an untreated disease. For example, misdiagnosed cancer can progress to a more advanced stage where treatment options become more limited and less effective.

Surgical Errors

Poor communication and carelessness in the operating room can lead to surgical errors, such as wrong patient or wrong site surgery, damaging tissues through improper incisions, or leaving equipment inside a patient. Surgical teams may also fail to prepare for potential complications during a procedure or promptly respond to signs of patient distress.

Anesthesia Errors

Errors by an anesthesia team may include:

  • Using a contraindicated anesthetic (such as a drug that the patient has an allergy to or that has adverse interactions with other medications the patient takes)
  • Administering too much or too little anesthesia (which can cause the patient’s vital signs to crash or cause the patient to wake up or feel pain during the surgery)
  • Failing to monitor the patient’s vital signs and communicate signs of distress during surgery.

Medication Errors

Healthcare providers can make various mistakes with patients’ medication, including prescribing a contraindicated medication, miscalculating the proper dosage, pharmacy errors during the filling of the prescription, or administration errors such as missing doses or giving medication to the wrong patient.

Emergency Room Errors

Emergency room errors can cause patients to miss out on potentially life-saving treatment. For example, triage errors may result in a misdiagnosis of the severity of a patient’s condition.

Emergency rooms may prematurely discharge patients without correctly diagnosing their condition or providing necessary treatment, frequently resulting in patients returning to the hospital in worse condition.

Hospital-Acquired Infections

Poor cleaning, sterilization, and infection control practices may spread viral or bacterial infections among patients, especially since admitted patients suffering from acute medical issues may have stressed or weakened immune systems.

Medical providers must obtain a patient’s informed consent before performing any treatment. Informed consent involves explaining the details of a procedure, risks/benefits/potential complications, and alternative treatments.

Failing to provide a patient with information material to their decision to undergo the treatment may give rise to a medical malpractice or assault or battery claim against the healthcare provider.

Gathering Evidence for Your Medical Malpractice Claim

Proving that you suffered harm due to medical malpractice will require complex evidence. Your evidence must explain what treatment you received and prove how that treatment failed to comply with the standard of care and caused you harm or injury.

Critical evidence you may need to build a successful medical malpractice claim includes:

  • Medical records of the allegedly negligent treatment you received
  • Your provider’s treatment notes
  • Second opinions you received from other healthcare providers
  • Healthcare facility staffing records
  • Eyewitness testimony
  • Surveillance camera footage

Although you can request copies of your medical records, obtaining other evidence may require you or your lawyer to send your healthcare providers document hold requests to preserve evidence you may later request in a medical malpractice lawsuit.

Most medical malpractice claims will require you to obtain expert reports and testimony from a medical professional in the same specialty or subspecialty as the provider who negligently treated you.

Your expert must explain the standard of care required in your case and how your provider’s treatment fell outside the scope of the standard of care. Your expert must also opine, to a reasonable degree of medical certainty, how the provider’s substandard care caused the injuries you’ve claimed to suffer.

Because medical malpractice claims involve complex facts and legal issues, you need legal counsel with extensive experience handling malpractice claims.

A skilled medical malpractice lawyer will thoroughly understand New York law and the process of filing a medical malpractice claim.

When you’ve compiled a list of attorneys you might hire for your case, check their experience and track record. Ideally, you’ll want a lawyer with substantial medical malpractice experience and a high success rate at the negotiating table and in court. Most medical malpractice attorneys offer free initial consultations where you can ask questions about their services to help you determine which attorney to hire.

Be sure to take note of how you feel in the attorney’s presence. In a medical malpractice claim, you’ll need to tell your lawyer intimate details of your treatment and your subsequent condition.

Make sure you’re confident you can trust the lawyer with your personal details. Find out how they will communicate with you and how often and when they are accessible.

You should also consider the lawyer’s fees and payment structure.

Fortunately, most medical malpractice lawyers represent injured patients on a contingency fee basis, which means the client pays nothing upfront or out-of-pocket to hire the lawyer. Instead, the lawyer gets paid only if they recover compensation for their client, receiving an agreed-upon percentage of the financial recovery as their legal fee.

Affidavit and Notice Requirements

To file a medical malpractice lawsuit, you must satisfy specific legal requirements.

First, you must obtain a certificate of merit. This document certifies that you or your attorney have consulted with a medical expert who has reviewed your case and determined that you have a reasonable basis for your claim that your healthcare provider deviated from the applicable standards of care and injured you.

The certificate of merit does not constitute evidence proving your claim. Instead, certificates of merit weed out frivolous medical malpractice claims by ensuring that a healthcare professional has agreed that a medical malpractice claim has at least some merit.

However, you may not need a certificate of merit for a case where the evidence clearly demonstrates a healthcare provider’s alleged negligence, such as when a surgeon leaves equipment or materials inside a patient.

When you wish to file a medical malpractice claim against a public healthcare facility, New York law requires you to provide notice of your claim to the appropriate government agency or department within 90 days of receiving negligent treatment or discovering the harm caused by such treatment, whichever occurs later.

In certain circumstances, a court may exercise discretion to grant an injured patient an extension to file their notice of claim.

Initial Settlement Negotiations

Most medical malpractice claims settle rather than go to trial. Your medical malpractice attorney may send your negligent healthcare providers or their malpractice insurers a claim or demand letter to notify them of your claim and begin settlement negotiations.

Your insurance claim or demand letter will set forth the evidence proving that you suffered injuries due to your provider’s treatment that fell outside the scope of the standard of care, along with documentation establishing your financial and personal losses from the harm you’ve suffered due to negligent care.

Your attorney may trade settlement demands and offers with your provider or their insurer/counsel to reach a mutually acceptable compensation figure.

Your attorney may suggest participating in mediation, a more structured type of settlement negotiation facilitated by a neutral third party called a mediator, who helps parties see the strengths and weaknesses of their respective cases and suggests solutions that may become part of a settlement.

However, when your healthcare provider refuses to agree to a fair compensation figure or denies liability for your harm and loss, you may need to file a lawsuit to continue pursuing your medical malpractice claim.

Filing a Lawsuit

Under New York’s statute of limitations, you typically have 30 months to file a medical malpractice lawsuit against negligent healthcare providers after receiving negligent treatment. However, for cases involving foreign objects left inside the body, you have one year after you discover or reasonably should have discovered the foreign object.

For cases involving delayed diagnosis/misdiagnosis of cancer, you have 30 months after the date you discover or should have discovered that your provider misdiagnosed your cancer. Do not wait to file your lawsuit since the trial court can dismiss any case filed after the expiration of the limitation period on the medical malpractice claim.

After you file your complaint with the court and serve a copy of the complaint and court summons on the healthcare provider(s) you’ve sued, your providers can file a responsive pleading called an answer to admit or deny the allegations in your complaint. The providers can also file a motion to dismiss your complaint if it fails to establish sufficient allegations to state a viable medical malpractice claim.

Following the pleadings stage, the parties proceed to discovery, which involves the exchange of evidence and information and taking witnesses’ depositions to narrow down the issues in dispute for trial.

During discovery, the court may require the parties to attend a settlement conference overseen by the trial judge to try to reach a settlement that avoids the need for trial.

Based on the evidence uncovered during discovery, either party may file a motion for summary judgment. This motion argues that no factual disputes remain, and the undisputed evidence entitles the moving party to judgment as a matter of law. However, if the parties don’t settle the case or resolve the lawsuit through motions, the case will eventually reach trial.

What Compensation Can You Recover in a Medical Malpractice Claim?

In a medical malpractice claim, you may have the right to obtain financial recovery for losses caused by a healthcare provider’s negligent treatment decisions and actions.

Your compensation can include money for:

  • Additional medical treatment and rehabilitation for injuries, complications, or more advanced disease caused by negligent healthcare
  • Long-term care and support you may need for disabilities that result from injuries or complications
  • Lost income from the additional time you need to take off work or spend in a lower-paying part-time/modified-duty position
  • Loss of future earning capacity due to prolonged or permanent disabilities that prevent you from returning to your job or other work
  • Additional pain and suffering from your injuries or extra medical care
  • Loss of enjoyment or quality of life or reduced life expectancy
Ivan M. Diamond, Medical Malpractice Lawyer
Ivan M. Diamond, Medical Malpractice Attorney

If you believe you've been a victim of medical malpractice, don't hesitate to consult with a qualified personal injury lawyer to protect your rights and seek the justice you deserve.

Schedule A Free Consultation

Why Hire an Experienced
Attorney Like Ivan Diamond

If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

footer attorney image

If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

Someone who understands the tactics insurance companies and opposing lawyers sometimes use to avoid liability and paying settlements.

Insurance adjusters, in particular, know that you’re going through a difficult time. They may try to take advantage by offering you a lowball settlement, hoping you’ll jump at quick money before you talk to a lawyer. Don’t help them out. Instead, let an experienced attorney handle the negotiations.

The same goes for preparing your claim. A skilled, knowledgeable litigator like me understands what facts and arguments are most important to prove your claim to a judge and jury, if it comes to taking a case to trial. I know how to guide my clients through depositions, discovery, and efforts by opposing lawyers to trap them into saying things that might undermine their case.

Related Post

Ortiz Family’s review &

Case Study


When our family received a call from the nursing home my brother was staying, we had no idea what lay ahead. My brother was burned over 60% of his body from smoking a cigarette without supervision.


We were so lucky to find an attorney like Mr. Diamond. We found Mr.Diamond to be sensitive to our sense of urgency to resolve this situation. He was 100% reliable and truly cared about our case which was very important to us.


As it turned out we received a large settlement and can now put it behind us. We’re very grateful to Mr.Diamond for his support and understanding and we would highly recommend him. Not to mention, he was a hell of a nice guy.