Tolling The Statute Of Limitations In New York Medical Malpractice Cases Involving Infants: Some Help, But Not The Full 18 Years!


The statute of limitations is the time period in which a person must commence an action. This applies to victims of torts like an assault or battery, or a party in a breach of contract, or victims of medical malpractice. The statute of limitations is prescribed by statutory law as enacted by the legislature. Meaning the statute of limitations is set in stone, and it is one of two time periods a court can never extend.

But the time period for a medical malpractice claim is different than an assault. In fact, there are numerous statute of limitations periods ranging from as short as 90 days, to as long as 20 years. Medical malpractice cases are generally 2 and a half years from the date of the negligent act or omission. There are some extensions that may apply, but it is best practice to not rely on them.

There is another important extension which you need to know about, and that is in the case of infants. It is not exactly an extension, but it functions that way. It is called a toll, and it is a delay or pause in the statute of limitations applying. It is called the infant toll.

Normally the infant toll would allow the statute of limitations period to start when the infant turns 18 years old. Thus in a negligence case, an infant injured at the age of 5 years old would have until his or her 18th birthday before the statute of limitations starts. This would give the infant another 3 years, the statute of limitations for negligence cases, to commence an action.

However, medical malpractice cases have a different tolling period. This toll extends only 10 years from the date of alleged act of medical malpractice. This means that an infant injured by medical malpractice must have the case commenced within 10 years. While this seems like a long period of time, remember that a lot of medical malpractice claims involving infants are for babies in birth injuries. This still means that a victim of a birth injury must commence the action on or before his or her 10th birthday.

Luckily, the claim can be brought by the parent and natural guardian. But this still does not make it any easier for the actual victim, and some instances of medical malpractice birth injuries may not be fully manifested by the age of 10 as the brain and infant are still developing.

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 You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at