Kingston Medical Malpractice Attorney Discusses The Statute Of Limitations: How Does It Work And Why Is It Important


Malpractice occurs in many forms. No matter the form, the end result is the same. With malpractice comes damages, in some cases physical, monetary, or even both. Under New York law, Civil Practice Law Rules (NY CPLR) Section 214 (a), the statute of limitations for a malpractice action pertaining to medical, dental or podiatric malpractice begins at the time of the act, the omission or the failure to act. As such, these malpractice actions, under New York law, must be commenced within two years and 6 months of the act, omission, or failure to act.

There are some exceptions. One pertains to foreign instruments left inside a patient. When a malpractice action is brought upon patient’s discovery of a foreign object in their body, a malpractice action may be brought within one year of the date of that discovery. Or, alternatively, the action may be brought within one year when there is a discovery of facts, which would reasonably lead to such a discovery. The court will go with whichever of the two is earlier.

In regard to minors who have experienced malpractice and want to bring suit for damages they have suffered, there is a different statute of limitation that applies to them.  Minors are considered infants in the eyes of the law. As such, minors are categorized under the label of disabled persons. Under NY CPLR section 208, disabled persons, whether they be disabled from infancy or an actual mental defect, may have the statute of limitations extended to three years after the disability ends, or the disabled person dies, whichever occurs first. Furthermore, if the statute of limitations at issue is less than three years, the time shall be extended by the period of the disability. However with a medical malpractice claim, the statute of limitations cannot be tolled more than 10 years.  Thus, a birth injury must be commenced prior to the child’s tenth birthday.

A landmark case relating to NY CPLR section 214 (a) is Labarbera v. New York Eye and Ear. In this case, the plaintiff, after having nasal reconstructive surgery in 1986, experienced continuous nasal and respiratory problems for the next six years. Upon consulting a new physician in 1992, it was discovered a stent had been left behind in the patient. Upon removal, the patient’s symptoms discontinued, and the patient brought suit within one year of the discovery. The Supreme Court dismissed the action and the Appellate Division, affirmed this conclusion. They reasoned, “the crucial distinction between a foreign object and a fixation device is whether the object was deliberately left inside the patient in the first instance.” The court came to the conclusion that “a foreign object is one the doctor does not intend to leave behind in a patient.”

If you or someone you know has suffered from malpractice, our attorneys are experienced and can help you determine if you have a case. You may be entitled to damages, and our attorneys will work with you to help you get what you may be entitled to.

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