Go to navigation Go to content

Can you bring a medical malpractice case in New York if your treating doctor didn't criticize first doctor?

You should know that in New York, if you want to bring a lawsuit against your doctor for violating the basic standards of medical care causing you harm, you must have a medical expert confirm that something was done wrong. That expert must also confirm that the wrongdoing was a cause of your injury. Then, we must show that your injury is significant and/or permanent.

Many injured patients don't begin to think about a possible lawsuit on their own, but instead, only after a treating doctor suggests to them that their first doctor did something wrong.

This often comes during an office visit where their treating doctor implies that the treatment they received by Doctor #1 was less than ideal. Other times they can come in the form of a suggestion that the first doctor should have treated you differently and had he done so, the outcome would have been different.

That type of comment by a treating doctor can often trigger an injured patient to think about the need to hire an attorney and the possibility that your injuries were preventable.

What happens though if an injured patient starts receiving medical care from Doctor #2 and Doctor #2 refuses to comment upon the care rendered by Doctor #1?

Is the injured patient still able to bring a lawsuit against Doctor #1 if Doctor #2 is not willing to criticize the care by Doctor #1?

The answer is yes.

An injured patient can still proceed forward with a case but in order to do so all of his records must be reviewed by a medical expert.

The medical expert must then confirm that (1) there was wrongdoing, (2) that the wrongdoing caused injury and (3) that the injury is significant and/or permanent.

Here in New York, the law requires that we have either a medical expert confirm that you have a valid case or a treating doctor.

The reality is that most treating doctors do not want to get involved with a lawsuit, especially against a colleague. Nor do they want to be known as someone who is testifying against another physician in their specialty.

That makes many treating doctors reluctant to openly criticize care rendered by other physicians.

In that instance, where a treating doctor refuses to participate and give expert medical opinions and conclusions, it becomes necessary to hire a qualified medical expert to review your records.

There are many instances where a treating physician will feel sympathy for the injured patient and tell you off the record that they think Doctor #1 did something wrong. However, they will also tell the patient that under no circumstance will they come in and testify against Doctor #1.

There have been some instances where treating doctors have explicitly told their patients that they should find an attorney because the treatment rendered by the Doctor #1 was substandard.

If the medical expert who reviews your records comes to the conclusion that there were no departures from good and accepted medical practice, then there is no way an attorney can proceed forward with your case.

A lawyer is required to submit documentation to the court confirming that a medical expert has reviewed your case and confirms each of the necessary elements in order to show that there is a valid and meritorious case.

An attorney is prohibited from starting a lawsuit in New York for medical malpractice unless he has a medical expert or treating physician who confirms that there are valid claims that resulted in injury.

The documentation necessary to submit to the court is known as a “Certificate of merit.”

You should know that this is not an affidavit by the doctor who reviewed your records confirming there is malpractice. Instead, this is a certification by your attorney confirming that he has consulted with a qualified medical expert who believes that there is a valid case.


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer