Medical Malpractice Statute Of Limitations: An Important Factor In Your Claim!

From time to time I think it is very important to reiterate that your medical malpractice claim WILL NOT LAST FOREVER! The law has what are called “statute of limitations” which creates a time limit when you can bring your claim. Since New York is a commencement by filing state, this means that before the time limit expires you need to file your complaint with the clerk of the court. Once you have filed, you need to serve the defendant the complaint within 120 days and you are on your way to the lawsuit. Even if you file the complaint on the last day of the statute of limitations, it will still be allowed to proceed if the action is longer than that limit. Basically, you do not have to start, argue, then resolve your case within the statute of limitations; all you have to do is start it.

In New York, the statute of limitations for medical malpractice claims is prescribed in the Civil Practice law and Rules in Section 214-a. This section provides that the action MUST be commenced within two and a half years from the act, omission, or failure of the complained of incident. Two and a half years is SUPER QUICK! Particularly because a victim of medical malpractice might need to heal from the injuries which will obviously take some time to do.

But, as I have discussed other times, there are some exceptions to the statute of limitations here. The first is the continuous treatment doctrine. This allows for the statute of limitations to not start when the actual act, omission, or failure occurs, but after the last TREATMENT for that illness, injury, or condition. The purpose of this is to allow a doctor to take as much time as he or she needs to attempt to fix his or her mistake without the patient worrying about not being able to sue the doctor. Therefore, if a doctor is liable for medical malpractice to a patient on January 1st, 2000, but continued to treat and fix the mistake until January 1st, 2002, the patient would now have until July 1st, 2004 to bring the claim and NOT July 1st, 2002. This is because the doctor continuously treated the patient. Not, this fact pattern is quite rare for a doctor to be trying to correct an error for two years, but I think it is the clearest example of how this doctrine works.

The second exception to the statute of limitations is called the discovery rule. This rule is particularly available only for foreign objects left in the body of a patient. This allows for what is technically an alternative period to the statute of limitations. If a foreign object is discovered three years after it was mistakenly and negligently left inside of a patient, the patient now has one year to bring the medical malpractice claim from the date of that discovery OR from the date of when the patient SHOULD HAVE discovered the foreign object, whichever is earlier. This means that if the patient had a reasonable belief that there might be a tool left inside him or her, but never thoroughly investigated it, that statute of limitations would run from that time of reasonable belief. There is, however, an ultimate ten year cap on a foreign object case where discovery is applied.

I hope this is helpful! I know I have discussed the statute of limitations once a month or so, but I think this is an imperative piece of information to learn about. I want to make sure my frequent readers have this reinforced as well as helping my new clients understand the law.

But what do you think?! I 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.