In New York, checking a suspected medical error starts with the complete medical chart, which patients have a right to obtain under Public Health Law §18. An independent physician then reviews it, and that review supports the certificate of merit filed with a malpractice lawsuit.
It rarely begins with certainty — it begins with a feeling that something is off. The procedure was described as routine and the recovery is now in its third month. A test result sat in the system and no one called. On the ward the phrase is that “these things happen,” nobody hands over any paperwork, and the family walks out of the emergency department with a two-page discharge summary and a long list of questions.
A suspicion is not yet a case. Between the two sits a review process, and it looks nothing like what most people picture. No lawyer files a lawsuit to see what turns up; the order runs the other way: gather the complete records, have a physician read them, and only then decide whether there is anything a court should hear. This guide walks through that sequence and shows what a patient can do in the first week without any legal help at all.
Where it all starts: the complete chart, not the discharge summary
New York law gives patients the right to inspect and obtain copies of their own medical records. The rule lives in Public Health Law §18, and the request goes in writing to the facility’s medical records department. A provider may charge a reasonable fee for copying, but an inability to pay is not a permitted reason to deny access. The same right extends to a person the patient authorizes and, in defined circumstances, to close family.
The operative word is complete. A discharge summary is a two-page abstract; the case is decided in the layers underneath it. That means physician progress notes for every day of the stay, the operative report, nursing flow sheets and observation charts, the medication administration record, timed laboratory results, imaging on disc rather than only the radiologist’s written impression, signed informed consent forms, emergency department records and ambulance run sheets. Imaging deserves its own line on the request: an expert wants to look at the images, not at someone else’s description of them.
Why insist on all of it? Because an error is seldom visible in any single document. It shows up in the sequence — when the blood pressure dropped, when a nurse charted it, when the physician was paged, when the physician arrived, what was ordered at that point. Laid out on a timeline, those entries reveal whether a warning sign was missed or answered properly; individually, they reveal almost nothing.
Two practical notes. Request early and in writing, and keep a copy of the request along with proof of mailing; that paper trail is sometimes the only evidence that a facility dragged its feet. And never annotate, correct or tidy up the records you receive. Their evidentiary value depends entirely on their being what the provider created, and any patient markings hand the other side an argument.
Who actually decides whether an error occurred?
Not the patient, and not the lawyer. A physician does — an independent one, usually practicing in the same specialty as the person whose care is in question. The attorney organizes the material, builds the timeline and frames the legal questions, but the judgment call on whether the care met professional expectations belongs to a clinician. A firm that handles these cases keeps medical consultants on hand, and the records go to them before anyone talks about filing.
The benchmark is the standard of care: what a reasonably competent practitioner would have done in comparable circumstances. A bad outcome is not by itself malpractice — medicine has limits, and many complications are recognized risks the patient was told about before signing a consent form. Negligence begins where someone departed from the standard — ignored a result, failed to order an indicated test, did not respond to deteriorating vital signs, confused a dose or a patient. That line is genuinely hard to see from the outside, which is exactly why a physician draws it.
The review also carries a procedural consequence. New York civil practice (CPLR §3012-a) requires that a malpractice complaint be accompanied by a certificate of merit, in which the attorney certifies having consulted a licensed physician and having concluded that a reasonable basis for the claim exists. Think of it as a filter installed at the courthouse door. So when a firm reviews a chart and says there is no case, that is usually not disbelief in the patient — it means the medical opinion will not carry the certificate.
What does the review itself cost? The first consultation and the initial analysis are free, and injury cases run on a contingency fee, with the attorney paid only from what is recovered. How expert costs are handled is worth settling at the first consultation — they vary with how many specialties the case touches, how voluminous the records are, and whether care has to be reconstructed across several facilities. In short, the money conversation does not have to come before the facts.
Free review of your medical records, in Polish or English: (347) 563-2605
New York realities: language, signatures and time
In the hospitals serving Greenpoint, Ridgewood and Maspeth, a Polish-speaking patient often communicates through a phone interpreter or through an adult child called in from work. Consent forms get signed in a hallway, in English, in a hurry. What results is a document that formally records informed consent even though the patient never heard a sentence about alternatives or risks. That gap is one of the most common threads in cases brought by Polish families here.
The second reality is time, and it deserves plain speaking: medical cases are among the longest-running in all of injury litigation. After the records review comes written discovery, then depositions, then experts on both sides. Hospitals and their insurers defend these claims consistently and have the resources to do it. This is litigation measured in years rather than months, and knowing that at the outset is far better than discovering it halfway through.
Deadlines are a separate subject, and the essential point is that malpractice deadlines are shorter and trickier than most people assume. They are governed by CPLR §214-a, and where treatment with the same provider continued, the continuous treatment doctrine affects how the clock is counted. Public facilities carry separate, far shorter notice requirements. The mechanics are set out in our guide to filing deadlines for injury claims in New York and New Jersey — and because records and an expert opinion both take time to assemble, the calendar is worth checking first, not last.
Evidentially, the structure resembles other negligence claims: show that someone failed to exercise the care the law required, and that the failure caused the harm. We described the same framework in our guide to proving fault after a fall in a store or stairwell. The difference lies in the source material. There it is surveillance footage and an incident report; here it is the chart and a physician’s opinion.
How to recognize an attorney prepared for a malpractice case
- Actual malpractice work, not just a listing. This is a distinct field with its own procedure and its own proof rhythm. The attorney should be able to describe the route from records request to certificate of merit before the conversation ever turns to what a case might be worth.
- Access to physicians who will review the file. Without a consultant in the right specialty, nothing moves. A firm that analyzes the records immediately upon being retained and takes them to medical experts saves months — months in which evidence tends to get harder to reach.
- A straight answer, including a negative one. Ask directly when the firm declines cases and why. An attorney willing to say “the opinion does not support a claim” is worth more than one who promises everything at the first meeting.
- Conversation in your own language, directly with the lawyer. A medical history is made of details: times, doses, the order of events, the exact words used on the ward. Relaying them through an intermediary loses precisely the nuances that decide these cases.
- Clarity about who handles the file. Establish at the first meeting who reads the records, who speaks with the expert and who appears in court. Firms where both partners work on cases personally can answer that question concretely.
Jodré Brenecki, LLP, based in Williamsburg, Brooklyn, meets these criteria — review the firm’s practice areas and client feedback.
What not to do when you suspect an error
Do not confront the physician or the department. A charged conversation settles nothing and can change what gets written in the chart — after visits like that, notes start describing the patient rather than the treatment. Questions about the course of care are better put in writing, or left to a lawyer. Declining further treatment at that facility, on the other hand, is entirely reasonable; moving to another provider does not weaken a claim.
Do not sign anything that arrives from an insurer or a hospital claims department. Releases, blanket authorizations opening your entire medical history, offers to “take care of the treatment costs” in exchange for closing the matter, recorded calls taken “just for the file” — all of it serves to limit the institution’s exposure, not to help the patient. A verbal apology or an assurance that the hospital “will look into it” carries no evidentiary weight and stops no deadline from running.
Do not post about it on social media, and do not wait for a consultation until treatment has run its course. Public posts get quoted back at patients, and delay consumes the calendar needed for records and an expert review. The right moment for a first conversation is when the question appears, not when certainty does.
Checking a suspected medical error does not start in a courtroom. It starts in a binder of records. The patient has a right to obtain them, an independent physician has to read them, and the certificate of merit determines whether the matter reaches a court at all. If one of those stages comes back negative, far better to learn it at the beginning than two years into litigation.
A first conversation commits you to nothing and costs nothing. If something about your care does not add up, both partners at Jodré Brenecki, LLP work on cases personally — from analyzing the records through consultations with medical experts.
Talk through what happened with an attorney: (347) 563-2605
Every situation is different — this guide is for general information only and is not legal or medical advice. Attorney Advertising. Consult a licensed attorney about your individual case.
