To file a medical malpractice case in New York, plaintiffs must file within a specific time frame based on the NY Medical Malpractice Statute of Limitations and must include supporting documentation and evidence. A plaintiff’s case will be dismissed if they fail to file their lawsuit before the deadline.
If you’re not sure about your case or the relevant statute of limitations, please book a free consultation with Dennehy Law Firm. Always seek legal advice from a malpractice attorney who is knowledgeable about the laws and procedures in your state.
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What is a Statute of Limitations?
The state legislation that establishes the deadline for filing a lawsuit is known as the statute of limitations. A case may be dismissed in court if it is filed after this date.
What is the Statute of Limitations for Negligence in New York?
According to Section 214-a of the New York Civil Practice Law and Rules, in New York State, you have 30 months (2.5 years) to launch a medical malpractice case from the occurrence, omission, or final treatment. There are some exceptions to this and, in these situations, the claims of medical malpractice may be extended.
Let’s look at the original text, pasted below:
An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that:
(a) where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and
(b) where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition.
For the purpose of this section the term “continuous treatment” shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition.
For the purpose of this section the term “foreign object” shall not include a chemical compound, fixation device or prosthetic aid or device.
New York Consolidated Laws, Civil Practice Law and Rules – CVP § 214-a.
New York Statute of Limitations and Discovery Rule
The “Discovery” Rule exists to protect patients and is often used when the statute of limitations has already passed. When applied, it extends the statute of limitations when the harm was done was not obvious to start from when a patient discovered or reasonably should have discovered the injury.
In New York courts, the “Discovery” Rule can only be applied in two specific scenarios:
- Discovery of a foreign object
- Failure to diagnose cancer (Lavern’s Law)
If you’re not sure whether this rule may apply to your case, it is best to confer with a lawyer to see whether this rule might apply to your case.
The Discovery Rule – Discovery of a Foreign Body
If a patient discovers they had, for instance, a medical instrument left inside them, they have 1 year from the time they found evidence of it or discovered it was reasonable to do so, whichever is sooner.
What constitutes a foreign object is crucial in terms of the discovery rule. The object has to be something that the patient unintentionally retained, such as forceps, gauze, pads, scalpels, surgical clips, or other instruments.
Objects that were knowingly inserted within a patient for medical purposes, but afterward forgotten to be extracted, are exempt from the regulation. ‘Fixation devices’ or implanted gadgets are examples, as well as sutures, pacemakers, and intrauterine devices.
Therefore, determining whether an object was carelessly left inside the patient or if it had been purposefully inserted for the patient’s benefit but then not removed might need a significant amount of investigation when an attorney is investigating a medical negligence case involving a foreign object.
Sometimes the body rejects implanted medical objects, resulting in an abscess or infection, but this is not necessarily due to medical negligence.
Discovery of a foreign object – example
James undergoes gastric bypass surgery on January 21, 2015. A surgical pad is accidentally left inside his body, but no one notices, not even James, for another 2 years in January of 2017.
Under the general medical malpractice statute of limitations, James only has until July 2017 to sue medical staff and, upon discovery of the object, only has 6 months left to sue. But because this case involves a foreign object, James is permitted more time i.e. 1 year from Jan 2017.
Failure to diagnose cancer – Lavern’s Law
The “Discovery” Rule now applies to cancer patients who wish to sue medical professionals when they have failed to diagnose cancer. Once the patient is made aware that there has been a misdiagnosis or failure to provide proper treatment, they have 2.5 years to sue. However, legal action can only be taken within 7 years after the date of the negligent act or lack of action or, in the case of continuous treatment, from the last day of treatment for the same condition.
Read more about Lavern’s law in the below section.
Exceptions – When the Regular Statute of Limitations for Medical Malpractice in New York Does Not Apply
The following situations are also typically exempt from the New York medical malpractice statute of limitations:
The Doctrine of Continuous Treatment
The Continuous Treatment Doctrine states that while a patient is receiving continued treatment for a disease or injury, the 30-month statute of limitations clock does not begin to run.
Why does this exclusion exist? Bringing a lawsuit for medical malpractice while undergoing treatment could negatively impact the patient’s level of care due to medical carelessness.
The moment the patient has finished receiving care from their provider, the clock starts to run.
Insanity
The State of New York does not hold a statute of limitations against a person who is not mentally stable and who is deemed insane. Once the person in question is considered well, the statute begins.
In other words, if the patient satisfies the criteria for insanity under the law, the 2.5-year statute of limitations is suspended. When he or she is no longer considered insane, it begins anew.
However, State law restricts the waiting period to 10 years in recognition of the fact that the mental condition may be permanent in certain individuals.
NY Statute of Limitations Medical Malpractice for Minors
According to New York law, minor children are exempt from the statute of limitations clock in matters involving medical misconduct. However, the patient’s 18th birthday will mark the beginning of the 30 months countdown.
It’s crucial to remember that there is an exception to this rule, which states that the time period cannot be more than ten years.
The parents of a newborn who was injured at birth as a result of a significant medical oversight or negligence made by the delivery nurse, for instance, would only have until the child reached 10 to initiate a lawsuit.
Foreign objects remaining in the body are subject to a 10-year time limit as well, although adults only have a year in the same circumstance.
Wrongful Death Statute of Limitations New York
If the victim of the alleged negligent act is deceased, their family has two years from the date of their death to file a wrongful death claim.
When bringing a wrongful death claim, the family of a person or loved one who they feel passed away as a result of medical malpractice has two options:
- The first step is to submit a claim against the healthcare providers no later than two years after the death.
- The second choice is to submit a claim on behalf of the patient’s estate to recoup the costs of the patient’s care before death.
The claim for pre-death damages may expire before the statute of limitations on the wrongful death action in situations where the patient lived for six months or more following the misconduct.
If any of this is confusing to you, we urge you to get in touch for a free consultation; we are here to help and are specialized in these matters.
Discovery Rule
Please see the section about the Discovery Rule above for more information and examples.
New York Medical Malpractice Statute of Limitations Cancer Diagnosis
You must file your case for negligent cancer or tumor diagnosis within 2.5 years of the time you discovered or should have known that negligence had occurred.
The new law also stipulates a seven-year window from the day it came into effect. The statute bears Lavern Wilkinson’s name.
Lavern’s Law – Medical Malpractice Cancer Diagnosis
Lavern’s Law was enacted on January 31, 2018, in the state of New York and was an important advancement for the rights of the patient with medical malpractice cases.
Named after a cancer patient called Lavern Wilkinson, it is a New York law that addresses claims that involve a failure to diagnose cancer and is an exception to the normal, 30-month, statute of limitations in New York.
With Lavern’s Law, if a malignant tumor or cancer is not detected in time, the statute of limitations clock only begins ticking once cancer has been properly diagnosed.
This expansion of the statute of limitations is not indefinite, however, and there is a seven-year limit to file a medical malpractice claim in a failure to diagnose a cancer case.
Who was Lavern Wilkinson?
Lavern was a 41-year-old Brooklyn mom who died of lung cancer, leaving behind her daughter, Micalia, 15, who is autistic, mute, and intellectually disabled.
Though Lavern initially sought medical care in 2010 and, though a 2-centimeter nodule was identified in her chest x-ray, she was never given her results. Instead, she was sent home by a first-year resident and advised to take Motrin, assuming Lavern was only dealing with asthma. In this case, emergency room doctors at the hospital, her primary care doctor, and hospital radiologists all failed to inform Lavern of her possible diagnosis.
She returned to the hospital in 2012 with a chronic cough which is when her Stage 4 cancer was diagnosed. By then, it had expanded into her brain, spine, liver, as well as her lungs, where it had initiated. She passed away less than a year later. If she had been properly diagnosed, there was a chance to cure her cancer.
In this case, the patient’s illness was missed due to negligence and, by the time they were made aware of the error, it was too late to treat cancer, let alone save their life and, according to existing laws, it was also too late to file for compensation in the state of New York.
The city felt compelled to offer her something, in part because of the media attention, and they settled for $625,000, but experts believe the award would have been significantly higher if she had sued the hospital, possibly around $10 million, to cover the future care of her child, Wilkinson’s pain and suffering and loss of parental guidance.
Lavern’s Law brought about changes in New York and hospitals and lobbying organizations responded by pressing Governor Andrew Cuomo to veto the law. In anticipation of his decision, advocates were nervous and hoped he would stand up for those who had been victimized.
If it turns out that your cancer diagnosis was inaccurate, the amendment gives you twice as long as before to file a claim. Usually, the plaintiff’s knowledge of the omission or error serves as the starting point for this clock. Updates made in January by Governor Cuomo of New York imply that the clock now begins when the patient learns that a mistake has been made, rather than after seven years have passed.
Although Lavern’s is a triumph for cancer sufferers, it does not assist Wilkinson or other individuals who were rendered incapacitated under the previous law.
Lavern’s Law is only applicable to cancer patients; it does not include other individuals who have received a false diagnosis.
Do you have a failure to diagnose cancer case in New York?
If you think you or a loved one has received negligent medical care or a delayed diagnosis relating to their cancer diagnosis, it is crucial to speak with a lawyer.
Contact Susan at Dennehy Law Firm to inquire about your case.
New York Statute of Limitations – Other factors
- Claims relating to product liability may be shorter than other personal injury claims (statutes of repose).
- Minors (see the relevant section below)
- A claim against a governmental entity may have a shorter statute of limitations and additional filing requirements
Not sure how the NY statute of limitation applies to your case?
Even if it may appear that the New York medical malpractice statute of limitations has run out, there is a chance that the harmed patient will still be able to make another claim because, in some circumstances, one incidence of wrongdoing may give rise to many causes of action.
Additionally, the statute of limitations for New York medical malpractice claims might not apply in your situation.
It is therefore of utmost importance to consult a knowledgeable medical negligence attorney if you want to find out how the New York medical malpractice statute of limitations applies to your case. Lawyers in New York have several different guidelines and must follow them closely.
FAQs about NY’s medical malpractice statute of limitations:
Is there a medical malpractice cap in New York?
Medical malpractice caps are restrictions on the amount in damages that medical malpractice claimants may get. In New York, there are no limits on the amount that can be claimed in a medical malpractice case. Only 15 states, including New York, do not have damage caps for medical negligence. Texas, California, and Colorado have some of the lowest non-economic damages caps of any of the 35 states with medical malpractice liability caps, at $250,000. Florida and many other states cap non-economic damages at $500,000.
How long do you have to sue a doctor after surgery in New York?
In New York, there is a distinct statute of limitations for claims involving medical misconduct. A victim of medical negligence in New York normally has 30 months (or two and a half years) to initiate a case. The time frame typically begins on the day of the alleged negligent act or omission, such as the date of the allegedly negligent operation gone wrong.
Additional unique rules do exist. For instance, the limitations period will not begin until the patient discovered their damage and, in the case of minors, they have until their twenty-first birthday to pursue a medical malpractice lawsuit.
Can I claim medical negligence after 10 years?
Under most circumstances, you cannot claim negligence after 10 years. Medical malpractice claims in New York must be made within two and a half years of the alleged negligent act or omission that resulted in the patient’s injury. There are some exceptions, for instance: a minor has three years from the date of their eighteenth birthday to file a medical malpractice claim if they were injured as a result of medical negligence; however, the negligent act or omission in question must have taken place within the previous ten years. Contact a medical malpractice attorney if you are not sure about your case.
Can I claim for medical negligence after 20 years?
Medical negligence cannot be claimed after 20 years. The statute of limitations is 30 months, or two years and six months, from the act, for claims of medical, dental, or podiatric malpractice in New York, according to New York Civil Practice Law & Rules (CVP) Section, 214-A.
Disclaimer: The content of this blog post (“post”) is meant to be used for general informational purposes only. The content may not reflect the current law in your jurisdiction or state. None of the information contained in this post should be considered legal advice from Dennehy Law Firm or the individual author, and it does not replace legal counsel by any means. As a reader, do not act or refrain from acting based on the information included in, or accessible through, this post. Instead, always seek legal or other professional advice on the circumstances & facts from a licensed attorney in your state and country.