Medical malpractice cases in New York have a statute of limitations that allows victims to file a lawsuit 2 1/2 years from the time of the injury. This means you have 30 months to file a civil suit seeking monetary damages. Minors, however, have until they reach the age of maturity. There are also other exceptions that apply.
It’s important to be aware of the statute of limitations and to consult with an experienced medical malpractice lawyer whose areas of practice include handling medical malpractice claims in New York. New York medical malpractice attorneys Ronemus & Vilensky, LLP, have represented and helped thousands of injury victims receive the financial compensation they deserve. Our malpractice lawyers, for example, have successfully handled Erb’s palsy and cerebral palsy cases for nearly three decades.
Let’s look at what is involved in medical malpractice claims and the New York statute that applies.
What Is Medical Malpractice Under NY Law?
Medical malpractice involves any incident in which the negligent act of a hospital, doctor, or other medical professional causes a patient to be injured or ill. Sometimes, it’s due to a prolonged illness caused by the healthcare professional’s failure to recognize symptoms. In other cases, a doctor may inflict direct harm on a patient.
A medical malpractice lawsuit can be filed in the event of patient harm, injury, or death due to misdiagnosis, surgical errors, failure to treat, birth trauma, and prescription drug errors.
Proving Medical Malpractice
For a medical malpractice attorney to consider a claim, the following factors must exist:
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Failure to provide a proper standard of care: The law requires healthcare professionals to adhere to specific criteria or risk being charged with negligence.
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Negligence caused the injury: The patient must show that the injury or harm was caused by negligence and that it would not have happened if the failure didn’t occurred.
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The injury must have serious ramifications: The patient must show that the medical negligence caused injury or harm resulting in significant financial loss.
New York Medical Malpractice Statute of Limitations Exceptions
There are several exceptions to the 30-month statute of limitations on medical malpractice cases in New York. Following are some of the exceptions.
Continuous Treatment Doctrine
Under the Continuous Treatment Doctrine, the 30-month statute of limitations clock is postponed while a patient receives ongoing treatment for an illness or injury related to the negligent act or omission. The doctrine’s objective is to allow a physician to correct any mistakes that may have occurred during the initial treatment, before the victim initiates a lawsuit. However, the clock begins once the patient has completed treatment with their physician.
For example, suppose surgery was performed negligently on January 1, 2020, and the surgeon performs a series of follow-up surgeries on March 1, June 1, and September 1 of the same year to correct their mistakes. On October 1st, 2020, the surgeon reviewed the surgeries. If the surgeon is unable to correct the errors, the patient’s statute of limitations will begin on October 1, 2020, rather than on January 1, 2020.
Insanity
If the patient meets the legal definition of insanity, the 2.5-year statute of limitations stops. It begins again when their psychiatric disability is lifted. Recognizing that this condition is permanent in some people, state law sets a 10-year waiting period.
Minor Children
As mentioned above, minor children are exempt from the statute of limitations in medical malpractice cases. The 30-month limitation period will begin when the patient turns 18. However, there is an exception: The period cannot exceed ten years. The 10-year limit also applies to a foreign object (sponges, tools) left in a patient’s body, whereas adults only have one year in the same situation.
Wrongful Death
When filing a wrongful death lawsuit, the family of a person or loved one who they believe died as a result of medical error has two options:
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The first step is to file a claim against the medical providers within two years of death.
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The second option is to file a claim as the patient’s estate representative to recover costs associated with the patient’s care before death. This option is available to family members for 30 months. If the patient meets one of the above exceptions while still alive, this time frame may be extended. It is also critical to understand that the statute of limitations for filing a wrongful death claim may have expired prior to the lawsuit for damages that occurred before death. In cases where the patient lived for six months or more after the malpractice, the claim for pre-death damages may expire before the wrongful death lawsuit’s statute of limitations.
Lavern’s Law
New York has extended its medical malpractice statute of limitations in failure to diagnose cancer cases through “Lavern’s Law,” which applies a date of the discovery rule. Previously, the discovery rule only applied to cases of medical malpractice in which a foreign object was left behind during surgery.
According to the law, “such action shall be commenced no later than seven years from the act, omission, or failure complained of or last treatment where there is the continuous treatment for the same illness, injury, or condition which gave rise to said act, omission, or failure.” Litigation may be initiated up to seven years after the last date of treatment under this provision of Lavern’s Law. Lavern’s Law also requires healthcare providers to keep all records, diagnostic studies, and related reports for ten years after the last treatment date or payment from a patient or collateral source, whichever is later.
Filing a Medical Malpractice Claim
If you believe you have a medical malpractice case, contact the attorneys at Ronemus & Vilensky for a free consultation. Our experienced personal injury and malpractice attorneys have recovered millions of dollars in damages to cover financial losses, including past and future medical bills, loss of earnings, pain, suffering, and more.
