The First Timeline: Make Sure You File A Timely Case
Sometimes clients, or prospective clients, ask us “how long will my case take?”
The first response is to first be sure you have a “case” in the first place.
For the typical case (involving a private/non-governmental doctor or provider) the time limit (“statute of limitations”) to file is 2 ½ years from the date of malpractice. Shorter periods, as short as 90 days for “Notice of Claim” may apply for certain municipal or other governmental entities. See NY CPLR § 214-a. In some cases, such as delayed diagnosis of cancer, longer periods (up to 7 years) may apply, depending on when the cancer was actually diagnosed.
So in all potential cases, consultation with a qualified attorney should be done as soon as practicable, to make sure that the time limits to bring suit have not expired.
Summary of The Stages of a Case
Assuming the matter is timely (within the “statute of limitations”) the time it takes a case to progress to settlement or trial can be broken down in the following “Stages”:
| Case Stage | Approximate or Typical Time | Total Time Since Initial Consultation With the Attorney |
|---|---|---|
| Investigation of a potential case for merit | 4-8 weeks (depending on whether records need to be ordered, including from background/baseline care providers, and complexity of the case) | 4-8 weeks |
| Drafting and filing Complaint (formally starts a legal case) | 2-4 weeks: Including need for further investigations into potential corporate entities; may be need for further expert reviews if more than one issue in the case | 6-12 weeks |
| “Discovery” (the period of information exchanges during litigation, including depositions of all parties) | Approximately 1 year in most malpractice cases. Some cases may take closer to 18 months in discovery, depending on the number of parties and witnesses, if legal issues require “motions” to be made. | 1-2 years. Note: some cases may be resolved by settlement at or near conclusion of “Discovery.” |
| From end of Discovery until Trial (may include motions and “pretrial conferences”) | Typically 6-10 months in most counties. This period may be extended if “summary judgment” motions are made, which may place the case on hold for some months for the Court to render decision. | 2-4 years. Note: some cases may settle in the months preceding trial. |
| Trial | If a case does not resolve prior to trial, trial of a medical malpractice case will typically take 2-4 weeks. | 2-4 years |
| Post Trial Proceedings | While most cases will resolve either before, or at trial, there are some cases that may involve “post trial” motions or appeal. This is less common, but such proceedings may add significant additional time. | Several additional months to a year or more (if required/less common). |
Some factors that affect each phase of a case are further explained below.
Initial Consultation and Case Review
We start by reviewing the medical records, consulting with qualified experts, and assessing whether the case meets New York’s standard for malpractice. According to the New York Pattern Jury Instructions, PJI 2:150 (full text), that standard is a “departure or deviation” from accepted standards of medical practice — which is also met if the care was not “reasonable” according to what similarly situated practitioners would do in the same circumstance.
In many cases, two overall questions drive our review. We cover these questions in more depth on our diagnosis errors and emergency room malpractice pages:
Did care fall below the accepted standard?
We compare what the treating provider did against what a reasonably prudent practitioner in the same specialty would have done under the same circumstances (per PJI 2:150). This typically involves our doing medical research, applying our experience from prior matters, and seeking input from qualified medical experts.
Are the damages sufficient to justify litigation, and provable?
We look at the severity and permanence of the injury, including, importantly, the extent to which an injury has affected a person’s life. We also evaluate if the injury has caused medical expense or lost income — also recoverable as damages.
As noted, the investigation phase normally takes several weeks. This may also be affected by the responsiveness of medical providers to our requests to obtain relevant records.
Filing the Lawsuit and Initial Responses
We formally commence a case by filing a Complaint in New York State Supreme Court — New York’s trial-level court of general jurisdiction. This is normally done in the county where the malpractice occurred or in your county of residence.
Once the Complaint (full text) is served, the defense typically has 30 days to serve its “Answer” when service is made on a hospital or medical practice. CPLR 3012.
After Answers are received, a process of exchanging “paper” discovery normally takes place. We are generally required, for example, to provide a “Bill of Particulars” which further specifies our allegations, provide authorizations for relevant medical records to the other side, and provide identities of potential witnesses who may be “noticed” for deposition.
How Long Does the Discovery Phase Take?
“Discovery” is the term used to describe the formal exchanges of information, including depositions, that take place after filing of the Complaint, and prior to trial. This is the longest phase of litigation. It is generally governed by CPLR Article 31. During this phase, depositions of all parties are typically taken, starting with the Plaintiff (party bringing the case).
During this phase of litigation, the Court will also schedule a number of “Conferences” (typically for the attorneys only). This will usually include a “Preliminary Conference” when an overall schedule is set for discovery, and various “Compliance Conferences” during the litigation, when the Court (and all sides) will confer about issues that may arise during discovery.
Estimated time frame: 12 to 18 months, depending on case complexity and the court’s docket. For example, a single-defendant case with one treating physician typically clears discovery on the shorter end of that range, while a case naming a hospital and three individual physicians as co-defendants often runs closer to the 18-month mark.
Filing the Note of Issue and Pre-Trial Hearings
Once discovery is complete, we file a Note of Issue under CPLR § 3402, which places the case on the court’s trial calendar. New York courts will typically hold several additional conferences while the case is on line, and many cases resolve during this window — by this point, both sides have taken depositions, consulted experts, and should have a detailed picture of the case’s merits.
Some defendants move for summary judgment during this phase, asking the court to dismiss the case. Under CPLR § 3212, that motion succeeds only if the defense makes a legally sufficient showing that “no triable issue” of fact remains for a jury to decide.
Estimated time frame: several months to a year, depending on case complexity, the assigned judge, and the county where the case was filed.
What Happens at Trial?
If no settlement is reached, the case proceeds to trial. We prepare all our clients, in advance, to help them know what to expect. Malpractice trials typically run two to four weeks, during which both sides present evidence and witness testimony. Trial begins with jury selection (attorneys only) followed by Opening Statements (in open court). Then, witnesses are called by both sides, and all sides are given the opportunity to “cross examine” the opposing witnesses. On conclusion of witness testimony, all parties give their “Closing Arguments” (or “Summation”).
A verdict usually marks the practical end of a case, though some proceed to post-trial motions or appeal.
What Can Affect How Long My Case Will Take?
Number of Defendants
Cases requiring us to name more “defendants” (more responsible parties) mean more depositions, more experts, and more scheduling conflicts to work through during discovery. This will all, generally, add to the length of the litigation.
Settlement Posture
A defense insurer willing to take a realistic view of its case may sometimes be willing to engage in serious settlement negotiations in months, as opposed to years. But this will sometimes depend on the individual insurance carrier, and sometimes on whether the individual Defendant has the right to force its carrier to litigate to trial.
County and Court Calendar
Case scheduling varies by the County where the case is filed, and the individual Judge assigned. These affect how quickly conferences and trial dates are set.
Frequently Asked Questions About Case Timing
What is the deadline to file a medical malpractice lawsuit in New York?
Generally two years and six months from the act or omission under CPLR § 214-a. Cancer and malignant-tumor misdiagnosis claims can extend that time from the time of diagnosis (under Lavern’s Law, CPLR § 214-a(b) — though not all cancer cases qualify for this extension). If the malpractice resulted in death, a separate wrongful death claim runs two years from the date of death under EPTL § 5-4.1.
What if the hospital is a public or city-run facility?
You have as little as 90 days to serve a Notice of Claim under GML § 50-e, with a one-year-and-90-day outer deadline to commence suit under GML § 50-i. We check hospital ownership status at intake to be sure we comply with these deadlines.
Will my case settle before trial?
Many do, particularly cases brought by our firm. We screen cases for merit. And we are known (by the opposing attorneys and insurance companies) as capable of bringing matters successfully to trial. While no guarantee, this combination of case selection, and how we handle cases, will more often than not present opportunities for resolution prior to trial. However, if a case cannot be resolved by a fair value settlement, we are ready, willing, and able to take your matter through trial.
