Is There a Statute of Limitations on Coronavirus Medical Malpractice?

In the months and years to come, there will likely be many reviews and recriminations of how governments, healthcare systems, and communities responded to the COVID-19 pandemic in 2020. Since civil litigation has been more or less put on hold in the state of New York during the current crisis, many people may be wondering whether they might run afoul of the statute of limitations applicable to malpractice cases if they are forced to wait too long to file suit.

Answering this question is complicated for several reasons. On the one hand, recent litigation has tolled the statute of limitations for malpractice that occurred prior to March 20th, 2020. On the other hand, asking whether you need to file suit by a certain date may be the wrong question to ask—the better question may be whether you will be able to file suit for coronavirus medical malpractice at all.

Tolls to the Medical Malpractice Statute of Limitations

In response to the early stages of the pandemic, New York Governor Andrew Cuomo issued Executive Order 202 on March 7th, 2020 to declare a state of emergency in New York because of the coronavirus outbreak. An addendum to this order signed on March 20th, Executive Order 202.8, tolled the statutes of limitations for all civil cases until April 19th, and subsequent orders extended this deadline to August 5th.

When a statutory filing period is “tolled,” that means that no time that passes during the tolled period counts towards the filing deadline to which a statute of limitations applies. In other words, anyone who had a cause of action accrue prior to March 20th, 2020 will have at least an extra 139 days—the amount of time between March 20th and August 5th of 2020—to file their claim.

The Problem with Coronavirus Medical Malpractice Claims

Under normal circumstances, any cause of action for medical malpractice that accrued between March 20th and August 5th would also have its statute of limitations tolled based on the same logic.

However, this will likely not be the case in New York because of another legislative action on April 3rd. On this date, a new state budget was passed with a clause added that granted immunity to medical workers and nursing home staff responding to the COVID-19 pandemic—a clause which superseded all prior executive orders related to the coronavirus emergency. Because of this immunity clause, virtually every healthcare provider in the state of New York will be completely immune from malpractice liability for any action taken during the crisis, except in cases involving gross negligence or overtly criminal behavior.

This measure has been controversial among many state legislators and legal professionals, and it remains unclear whether it will continue to be enforceable in the months and years to come. If you would like to explore your options for filing a coronavirus medical malpractice claim, you should speak with an attorney as soon as possible about this constantly evolving situation.