Failure to Treat in New York
Average Settlement: $250,000 - $750,000 | Statute: 2 years and 6 months from the date of the act, omission, or failure
About Failure to Treat
Failure to treat occurs when a healthcare provider correctly diagnoses a condition but fails to provide appropriate treatment, refer the patient to a specialist, or follow established treatment protocols. This form of malpractice can be particularly frustrating for patients who sought care, received a correct diagnosis, and then experienced harm because the necessary next steps were never taken. These cases often involve systemic issues such as overloaded physicians, poor follow-up systems, or cost-driven treatment decisions.
New York Medical Malpractice Laws
Statute of Limitations
2 years and 6 months from the date of the act, omission, or failure
Damage Cap
No cap on damages
Discovery Rule
New York has a very limited discovery rule — it applies only to cases involving a foreign object left in the body (1 year from discovery). Otherwise, the statute runs from the date of the act or the last date of a continuous course of treatment.
Pre-Filing Requirements
Plaintiffs must file a certificate of merit from a qualified physician.
Common Examples of Failure to Treat
- •Failing to prescribe appropriate medication after diagnosing a treatable condition
- •Not referring a patient to a specialist when the condition requires specialized care
- •Discharging a patient without an adequate treatment or follow-up plan
- •Ignoring or failing to act on abnormal test results that confirm a known diagnosis
- •Failure to provide appropriate post-surgical care or rehabilitation
- •Not ordering necessary follow-up imaging or biopsies after an initial diagnosis
- •Providing treatment that is outdated or inconsistent with current clinical guidelines
Key Facts
- ✓Failure to treat is legally distinct from misdiagnosis — the provider identified the condition correctly but did not act on it appropriately
- ✓Clinical practice guidelines from medical specialty organizations are often introduced as evidence to show what the standard treatment should have been
- ✓These cases frequently involve gaps in care coordination, particularly when multiple providers or healthcare systems are involved in a patient's treatment
- ✓Electronic health records that show a diagnosis was documented but no corresponding treatment plan was entered can be powerful evidence of failure to treat
- ✓Insurance-driven treatment denials may contribute to failure to treat, but the treating physician still has a legal duty to advocate for and pursue medically necessary care
- ✓Expert testimony in these cases typically focuses on what a competent physician in the same specialty would have done after reaching the same diagnosis
- ✓New York has some of the highest medical malpractice verdicts and settlements in the nation, particularly in New York City.
- ✓The continuous treatment doctrine tolls the statute of limitations while the same provider continues to treat the patient for the same condition.
- ✓New York follows a pure comparative negligence system, allowing recovery regardless of plaintiff's fault.
- ✓Future damages exceeding $250,000 must be paid periodically rather than as a lump sum under CPLR Article 50-A.
- ✓Expert witnesses are subject to the Frye standard for admissibility of scientific testimony.
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This information is for educational purposes only and is not legal advice. Consult a licensed medical malpractice attorney in New York.