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Open Bar: A Medical Malpractice Action in New York State Supreme Court (Part I)
The next series of MLMIC’S Open Bar Blog will track the normal course of a medical malpractice action in New York State Supreme Court, starting with part I, service of pleadings at the start of the action.
MEDICAL MALPRACTICE LITIGATION BEGINS WITH THE PLEADINGS
A medical malpractice lawsuit is started in New York State by filing the Summons and Complaint or Summons with Notice[1] with the Court (an index number is also purchased[2]). The Summons must contain the names of the parties, the index number, and the date of filing.[3] It also contains the caption of the action, which includes the venue (where the action is commenced) and the basis for the venue.[4] Often the basis for the venue is the residence of the plaintiff and if this is the case, the address must also be stated.[5]
If the Complaint is not served with the Summons, the Summons must state the nature of the action, i.e. medical malpractice.[6] If the Summons is served with the Complaint, the nature of the action and a general statement of the claims made in the action will be provided in the Complaint.
SERVICE OF THE SUMMONS AND COMPLAINT OR SUMMONS WITH NOTICE:
After the Summons and Complaint or Summons with Notice are filed with the Court, the plaintiff has 120 days to serve the Summons and Complaint or Summons with Notice upon the defendants in the action. [7]
There are several different methods of service of a Summons and Complaint or Summons with Notice upon individual defendants within the State of New York. These include personal service, where the Summons is presented to the defendant in person, or various types of substituted service, where it is served through an agent, by mail, or through other means. Each method of service has specific statutory requirements detailed in the CPLR (Civil Practice Law and Rules). Compliance with these requirements is mandatory and if service is not properly made, your counsel may raise this as a defense to the action. It is, therefore, very important to provide the details of service to your counsel, who can then determine if proper service has been made.
A Certificate of Merit must be served with the Complaint in all medical malpractice actions where the plaintiff is represented by an attorney. The Certificate addresses the plaintiff attorney’s consultation or efforts to consult with a physician or dentist regarding whether there is a reasonable basis for the action.[8]
SERVICE OF THE DEFENDANT’S ANSWER, MOTION, OR DEMAND FOR THE COMPLAINT:
Upon receipt of a Summons and Complaint or a Summons with Notice, the defendant must respond in a timely manner by service of either a motion extending the time to answer, an Answer, or a Notice of Appearance.[9] The timeframe depends on the type of service so it is important to immediately contact your insurer and/or attorney if you are served. If the Summons is personally served, the defendant has 20 days to answer, appear, or make a motion.[10] If not served personally, an Answer, appearance, or motion extending the time to answer must generally be made within 30 days after service is complete.[11]
If the Summons is served with Notice (and not the Complaint), the defendant may respond with a Demand for a Complaint or a Notice of Appearance.[12] The Complaint must then be served by the plaintiff within 20 days.[13] Upon service of the Complaint, with or without the Summons, the defendant must respond with a motion extending the time to answer or an Answer. The motion is generally intended to dismiss the action without the need for an Answer. The Answer is intended to give the plaintiff notice of the defendant’s position in response to the allegations pled, including any defenses to the claims. In the Answer, the defendant must respond to the allegations of the Complaint by admitting, denying, or denying information sufficient to form a belief.[14] The Answer will also contain any affirmative defenses to the action and may also assert counterclaims or crossclaims.[15]
If a defendant fails to serve a timely response, the plaintiff may make a motion for a default judgment[16] (meaning that defendant could lose the right to contest liability at trial and the case will proceed to an inquest on damages). The plaintiff has one year from the date of service of the Summons and Complaint to serve a Motion for a Default Judgment.[17]
Together with the Answer, the defendant typically serves a Notice to Take Deposition, Demand for Bill of Particulars, and Discovery Demands. These Demands and the practice relating thereto will be covered in this continuing litigation series.
Stay tuned for the next monthly Open Bar series installment
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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.
[PREVIEW TEXT FOR HEALTHCARE WEEKLY / DENTAL IMPRESSIONS]
Open Bar: A Medical Malpractice Action in NYS Supreme Court (Part I) In this first installment of an Open Bar series, we dive into the beginnings of a medical malpractice action in the NYS Supreme Court, starting with the service of pleadings. Follow along to understand the typical journey of these proceedings.
[1] CPLR §304(a)
[2] CPLR §306-a
[3] CPLR Rule 305(a); CPLR Rule 2101(c)
[4] CPLR Rule 305(a)
[5] Id.
[6] CPLR Rule 305(b).
[7] Id.
[8] Id.
[9] CPLR Rule 320(a)
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] CPLR §3018(a)
[15] Id.; CPLR §3019
[16] CPLR§3215
[17] CPLR §3215(c)
