What Physicians Should Do Immediately After Receiving a Malpractice Claim
Receiving a medical malpractice claim is an unsettling professional experience.
Data from the American Medical Association shows that roughly 28.7% to 31% of physicians in the United States have been named in a medical malpractice lawsuit at least once in their career.[1] [2] Downstate New York ranks far above these percentages due to population density, the presence of multiple major academic medical centers, plaintiff-friendly urban jury pools, and the underlying uncapped damages system.[3]
Over the course of a physician's career practicing in the New York metropolitan area, there is a substantial cumulative risk of being named in a medical malpractice lawsuit.
Physician's First Steps After a Malpractice Claim
The decisions made in the days immediately following service of a Summons and/or Complaint or receipt of a notice of claim can have a profound and lasting impact on the defense of that claim.
The following is practical guidance on how to proceed.
Notify Your Malpractice Insurer Immediately
The date of service of a Summons and Complaint triggers the deadline by which a responsive pleading known as an Answer (or in some cases, a motion) must be served. This timeframe is typically 20 to 30 days.
Do not attempt to respond to a Summons and Complaint on your own. After receiving a medical malpractice claim, it is imperative to immediately contact the applicable professional liability insurer and provide a copy of the documentation received. Most malpractice policies contain prompt-notice provisions that require timely reporting of claims or potential claims. Notifying the carrier is not merely good practice, but rather a contractual obligation under virtually every professional liability insurance policy. In certain circumstances, failing to comply with these provisions can jeopardize coverage entirely.
Do not wait until you believe the claim is "serious" or assume the matter will resolve on its own. A summons, complaint, a notice of claim, a demand letter, or even a direct inquiry from an attorney on behalf of a patient can constitute a "claim" or a "circumstance" that triggers a reporting obligation under your policy. When in doubt, report it.
Preserve Medical Records
Once you anticipate or receive a claim, a legal duty to preserve evidence is triggered. This includes not only the medical record and radiographic films, but also appointment logs, billing records, communications with the patient such as lay letters, and any electronic correspondence related to the patient's care, including e-mails between clinicians and patient portal messages.
Do not purge files, upgrade or replace systems, or discard anything that could conceivably be relevant without first consulting your attorney. The consequences of failing to preserve evidence can be significant, including court-imposed sanctions and adverse inference instructions at the time of trial.
Of course, do not add to, delete from, or modify the medical record in any way after learning of a claim. Under New York State law, alterations to medical records can give rise to separate legal theories, including spoliation of evidence or fraud. Courts and juries view altered records unfavorably, and evidence of record manipulation can irreparably harm an otherwise defensible case. If you believe there is an error in the record that predates the claim, speak with your defense counsel before taking any action.
Do Not Discuss the Case
Resist the urge to speak about the claim with colleagues, staff, or the patient and their family. Statements made outside the protection of the attorney-client privilege—even casual, well-intentioned remarks— can be discoverable and used against you at trial.
Over 30 states have enacted some version of an apology law, which essentially shields healthcare providers' post-incident statements from admission into evidence. The policy behind apology laws is that that mutual communication and sympathy after adverse medical events can benefit everyone involved, by promoting emotional healing for families, reducing anger and distrust, and sometimes even decreasing the likelihood of litigation.
However, in New York State, as of 2026 there is no statutory apology law in effect. Even a genuine expression of sympathy to a patient's family can be interpreted as an acknowledgment of fault. It is understandable that providers may wish to express human compassion without automatically admitting legal responsibility; however, providers are cautioned to keep the foregoing in mind.
Engage Thoughtfully With the Process
The period after receiving a malpractice claim can be professionally and emotionally draining. Litigation in New York can be protracted, and the demands of discovery, including depositions and trial appearances can compete with the demands of a medical practice. Physicians who engage actively and honestly with their defense counsel, ask questions, and remain accessible tend to navigate this process far more effectively than those who disengage.
A malpractice claim is not, by itself, evidence of wrongdoing. Many claims are defensible, and many are resolved without any finding of liability. The early steps you take can shape the foundation of that defense. Acting promptly, preserving evidence, and working closely with experienced counsel are the most important investments a physician can make from the moment a claim arrives.
If you have questions about responding to a malpractice claim or protecting your interests at any stage of litigation, please contact Kelsey O'Brien.
[1] Guardado JR. Medical Liability Claim Frequency Among U.S. Physicians. Chicago, IL: American Medical Association; 2023. Policy Research Perspectives.
[2] Hardiman A. Medical Liability Claim Frequency Among U.S. Physicians. Policy Research Perspectives. American Medical Association; May 2026.
[3] "New York Medical Malpractice Insurance." Gallagher Healthcare, Arthur J. Gallagher & Co., www.gallaghermalpractice.com/state-resources/new-york-medical-malpractice-insurance/.
