Continuous Treatment And The Statute Of Limitations

The experienced Kingston medical malpractice attorney does not have to consult with New York State laws in order to know what the limitation period is for medical malpractice.  This is because such laws have been committed to memory after numerous years of practicing law within the realm of medical malpractice issues.

The wise attorney knows, nonetheless, that the statute should be consulted, where to find it, and to stay abreast of changes in the law.

The limitations period for medical malpractice in New York is found in Article 2 of the Civil Practice Law and Rules.  Specifically, NY CPLR section 214-a, “Action for medical, dental or podiatric malpractice. . .” states:

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 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. 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.

In short, an injured patient has 2 ½ years from the date on which the doctor messed up to start a lawsuit against that doctor.  Exceptions may apply, as in cases involving foreign objects.  But let us focus on the “continuous treatment” phrase, because the 2 ½ years can be calculated from the last date of continuous treatment which may be much, much later than the date of negligence.

A simple example can illustrate the continuous treatment rule.

Frank is the victim of medical malpractice that occurred during gastric bypass surgery.  The surgeon told Frank that part of the surgical routine is for him to see the surgeon two times after the surgery; two weeks after the surgery and then six weeks after that.  Such was not optional for Frank and not done at Frank’s request.  The follow up visits are doctor’s orders.

Frank indeed sees the surgeon for those two doctor scheduled appointments and never sees him again.

The 2 ½ statute of limitation period for Frank’s eventual lawsuit against the bad surgeon starts on the date of the second appointment and not on the date of the surgery.  This is very important if the surgeon tries to have the case dismissed on limitations grounds by using the surgical date as the starting point.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.