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The Importance of Foreseeability in NY Malpractice Cases

Medical professionals are expected to assume responsibility for their wrongdoing. However, many doctors will try to avoid responsibility by claiming the harm came as a surprise or, in legal terms, was unforeseeable. “Foreseeability of risk” in malpractice cases is a legal concept centered on the notion that professionals are generally expected to take precautions to avoid risks known to occur or that are foreseeable, but that they are not necessarily responsible for unforeseeable problems. If you were injured in a medical malpractice case because of an “unforeseeable complication,” call the Queens medical malpractice lawyers at Sullivan and Galleshaw today to schedule a free legal consultation.

Foreseeability of Risk in Malpractice Cases

Foreseeability of risk is a complex legal principle. The injury or harm must be likely to occur as well as likely to occur to a person who is owed a duty. Sometimes the person who suffers harm is a third party, such as the children of the medical malpractice victim. In these instances, the professional can claim that he did not owe the third parties a duty, so the harm to them was unforeseeable. A skilled attorney will understand the jurisprudence behind this notion and will demonstrate how foreseeability of risk applies.

The question of who is owed a duty is one of much legal debate. While some courts say legal responsibility cannot be owed to everyone who is injured, there are court decisions that look at wide areas such as ethics and policy considerations within a profession to establish who is owed the duty. On the other hand, if the harm or the injured victim constitute an exception or remote possibility, then courts may be unwilling to find the doctor liable, even if a serious injury occurred.

Foreseeability of Risk in New York Law

Foreseeability of risk in New York is based on whether the harm could have been anticipated. Di Ponzio v. Riordan, 89 NY2d 578 (2001) Liability is generally imposed on the party who is in the best position to prevent the harm caused. Hamilton v. Beretta Corp., 96 N.Y. 2d 222 (2001). Moreover, “foreseeability, alone, does not define duty – it merely determines the scope of the duty once it is determined to exist.” Id.

New York courts establish distinctions between the relationships between parties as part of determining foreseeability. For example, in medical malpractice cases there is typically a contractual relationship, direct or implied, between the patient and the doctor. In other personal injury cases, the duty found can be imposed by statutes, common law, or because the defendant was in the best position to prevent the harm.

While professionals are not expected to prepare for all possible eventualities, there is an expectation of competence in the exercise of skill and judgment in their profession. If you have been affected by medical malpractice, but you didn’t hire the professional or didn’t receive the services yourself, you’re not automatically barred from seeking legal recourse. However, you need an experienced lawyer to help you establish a duty and determine if there is a remedy available.

Factors in Foreseeability of Risk Cases

Foreseeability is not determined by one factor but a panoply of elements that will be determined on a case-by-case basis. Most people don’t know that in New York, the question of foreseeability is typically reviewed by a jury, while the question of duty is ordinarily for the judge or a question of law. Palka v. Servicemaster Mgt., 83 N.Y.2d 579, 585 (1994)

The foreseeability question presented to a jury should be related to the particular facts of the case. This means that the lawyers should provide the trial court with carefully stated requests that link the facts to each party’s duties and responsibilities. The jury should be asked to specifically address the foreseeability issues as they come up in the facts of the case.

History of Foreseeability of Risk in New York Jurisprudence

The current legal definition of foreseeability of risk dates back to the opinion of Palsgraf v. The Long Island Railroad, 248 N.Y 339 (1928). In this foundational case, the injury victim was denied compensation on the basis that the likelihood of harm was a remote possibility that no one could have anticipated. The victim in Palsgraf was hurt by the explosion of an unmarked package of fireworks found near a railroad. The defendant was not found responsible, in what was perceived as a rare occurrence. This case marks an important development establishing limits of liability to instances that can be reasonably anticipated.

The New York Court of Appeals has further reaffirmed the Palsgraf view in Danielenko v.Kinney, 57 N.Y.2d 189, 204 (1982). In that case, the court held that legal responsibility depends on whether the harm was a reasonably foreseeable consequence of the defendant’s conduct. These cases are significant because New York courts are concerned that liability towards boundless numbers of people can result in an unfair burden to the professional. For example, in the area of disclosure of medical information, plaintiffs have to show: (1) a duty that the defendant the plaintiff; (2) a breach of duty, and (3) an injury resulting from the breach. Pasternack v. Laboratory Corp. of America, 27 NY3d 817, 825 (2016).

The practical result of these cases has been that unforeseeable risk is frequently invoked as a defense to be exempt of liability. If you are a “third party” without a direct relationship to the defendant, then the question of liability depends on a more specific analysis by an experienced personal injury attorney.

Call Our New York City Personal Injury Lawyers Today for a Free Consultation

If malpractice caused a financial loss or the wrongful death of a loved one, there is a good chance the doctor may be liable for damages. The New York City personal injury attorneys at Sullivan and Galleshaw recognize this can be a problem for plaintiffs with valid claims and understand the intricacies of preventing valid claims from moving forward. Call to schedule a free and private consultation at (718) 843-0300.


Over our many years practicing personal injury law, our highly experienced legal team has earned a reputation for excellence. Our attorneys have appeared on major media outlets such as Fox News and MSNBC . Our firm’s legal accomplishments have been profiled by the New York Law Journal, the Los Angeles Times, ESPN, and the Associated Press. We have won multiple verdicts in excess of $1 million, making us proud members of the Million Dollar Advocates Forum, a prestigious organization which admits fewer than 1% of all attorneys in the United States. We were named Super Lawyers in 2011, and enjoy a perfect 10/10 Superb rating on national attorney database Avvo.

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