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medical malpractice statute of limitations in new york

Lady Justice has a wakeup call for all those on the fence about a medical malpractice lawsuit in New York State: Don’t stay up there too long. Your pain and suffering from a doctor’s negligence may last indefinitely. Not so for the opportunity to seek justice under New York medical malpractice laws.

What are Statutes of Limitations?

Except for the most serious crimes—think murder and rape—there’s a prescribed time for the clock to run out on virtually every legal action under the sun. These prescribed times are called statutes of limitations: set-in-stone legal deadlines that can break your case before it even gets off the ground. And these deadlines, ranging from one to 20 years, are so divergent that the New York Unified Court System has a timetable on their website (see here) to help you navigate the state’s different time frames for claiming medical malpractice cases.

“A statute of limitations is any law that bars claims after a certain period of time passes after an injury,” says Cornell Law School’s Legal Information Institute. “Statutes of limitations exist for both civil and criminal courses of action and begin to run from the date of injury or the date it was discovered, or the date it should have been discovered.”

 

Basically, any court case filed after the statute of limitations will be barred from its day in court. Since that means no judicial hearing and no compensation–no matter how severe the injury, it’s easy to see how statute of limitations is one of the most critical elements of medical malpractice law. 

New York Statute of Limitations for Medical Malpractice Cases

New York’s statute of limitations for medical, dental or pediatric malpractice is two years and six months from the date of malpractice or from the end of continuous treatment by the party you plan to sue for alleged negligence. That gives you 30 months to file a civil suit for monetary damages. In the case of a minor, lawmakers stop the clock until he or she reaches adulthood.

The purpose of such laws is not to make life harder for the sick and infirm, but to extend fairness toward those in the medical community by closing the door on lawsuits after a reasonable time, also considering that evidence can grow stale with time.

New York’s “Discovery Rule” for Surgical Malpractice Claims

While the law can’t foresee every possible circumstance, it makes sure not to overlook one particularly serious malpractice issue with its discovery rules, and that is the case of foreign objects left behind during surgery. The last thing a patient wants to ask their doctor after an operation is, “Did you forget anything?” But it does happen—especially with operations involving surgical sponges and instruments that have been misplaced in the abdomen, pelvis, and retro-peritoneum (space within the abdominal cavity).

The consequence for the patient can be another surgery and sometimes the loss of life. When it comes to foreign objects a surgeon might stitch up inside you, New York’s “Discovery Rule” is in place to adjust the statute of limitations for these types of cases. The Discovery Rule states that legal action may be taken within one year of the discovery date of foreign objects left behind during an operation, or within one year of fact-finding leading that led to the discovery of said object—whichever date comes first.

Lavern’s Law

One important exception to the statute of limitations for medical malpractice in New York is Lavern’s Law, named after a cancer victim named Lavern Wilkinson. Lavern’s Law resets the clock on the statute of limitations when there has been failure to diagnose a malignant tumor or cancer. This Brooklyn mom’s tragic story illustrates how a patient whose cancer goes undetected due to negligence might not be aware of the mistake until it is too late to save their life or sue for damages.

By the time Wilkinson realized her lung cancer had been misdiagnosed, it was no longer curable. She was just 41 when she died in March of 2013 unable to sue city-owned Kings County Hospital because the statute of limitations had expired. Although she received $625,000 from a settlement, experts say the award fell far below what a lawsuit would have delivered. Since the late diagnosis resulted in death, Wilkinson (in this case her estate) stood to win a sizable figure if not for the statute of limitations. After all, New York is one of 15 states that has no cap (or limit) on dollar awards, according to the New York American College of Emergency Physicians. 

But her case was a wake-up call for New York’s judicial system. The Daily News and other media rallied for reform, and legislators from both parties found in Lavern’s Law one of those rare gems the overwhelming majority could all agree on, after it had gone through revision that is. With pressure on from hospitals and lobby groups opposed to the measure, advocates were on pins and needles over whether Gov. Andrew Cuomo would sign Lavern’s Law into effect. “The governor’s obligation should be evident,” said The New York Times on its editorial page, “to do right by patients who’ve been done wrong.”

Today Lavern’s Law is giving cancer victims their day in court because governor Cuomo did sign this amendment in January of 2018. And they have twice as long to bring action than the original law, which meant a deadline of 15 months from the time of the misdiagnosis. Now the clock starts running from the time the patient discovers, or should have enough facts to reasonably discover, the omission or error; but no action can be filed after seven years have passed. It should be noted that starting the clock at the time of discovery is the legal standard in all but five states.

Though a victory for cancer victims, Lavern’s brought no benefit to Wilkinson or her family, including an autistic and developmentally disabled child in need of continuous care. That’s because the pared-down measure passed in Albany did not provide a one-year window to revive cases like Wilkinson’s that failed to beat the clock under the old law.

Lavern’s Law applies only to cancer victims, as lawmakers chose not to rewind the clock for others who also might have been wronged by misdiagnosis. Although this exclusion narrows the field greatly, opening the door for cancer victims was not considered a baby step in terms of numbers.

The State of Medical Malpractice in New York

When it comes to malpractice cases, the worry is often that claims will be exorbitant driving up the cost of health care; however, a study of malpractice in New York hospitals suggests just the opposite. The study, which involved a team of Harvard University researchers, concluded that thousands of deaths and tens of thousands of injuries may stem from negligence each year.

For the study’s focus year, 1984, the preliminary estimate was 7,000 hospital deaths and 29,000 additional injuries. But few of the victims ever went to court over their damages—researchers say, there were 10 times more cases of negligence than malpractice claims filed in New York that year.

While stats like these continue to feed the national debate over whether the medical malpractice system is doing its job, the fact is that today there’s no cap on awards in New York, which has led to multi-million-dollar awards in some cases.

When to Contact a Medical Malpractice Attorney

On the road to getting just compensation for a doctor or hospital’s life-changing mistake? The first step is filing your lawsuit before the statute of limitations closes the door. Call for a free consultation with an expert New York medical malpractice lawyer at (855) 468-7626, or visit one of Sobo & Sobo’s offices across the Greater Hudson Valley, and the Bronx.