New York Medical Malpractice Statute Of Limitations: The Discovery Rule


Under New York’s statute of limitations, victims of medical malpractice have only two and a half years to bring an action against the negligent health care provider.  There are two exceptions to this statute of limitations.  The first is the continuous treatment doctrine.  The second is the “discovery rule.”

In cases where a foreign object is left inside a patient, it is often not found until the statute of limitations period has already ended.  The discovery rule was doctrine created out of common law to address this issue.  It was later codified.

The discovery rule was created as an alternative period for the statute of limitations and begins to run at the discovery of the object.  Under New York law, a victim of medical malpractice involving the discovery of a foreign object left in the body has one year from the date of discovery of the wrong or facts that would have reasonably lead to the discovery, whichever is earlier, to commence an action.  The plaintiff also has the two and half years provided for under the Civil Practice Law and rules, or the one year, whichever is longer.

Under the discovery rule, what is considered to be a foreign object is very important.  The object must be something inadvertently left inside the patient such as forceps, gauze, pads, scalpels, surgical clips, or other tools.  The rule does not apply to objects intentionally placed inside a patient and were later forgotten to be removed.  Such objects include “fixation devices” or implanted devices.  Examples are intrauterine devices, pacemakers, and sutures.

Therefore, when an attorney is evaluating a medical malpractice case involving a foreign object, it can involve considerable amounts of research to determine whether an object was left inside the patient negligently or if it had been intentionally placed for the good of the patient but then later not removed.  It is unfortunate that most foreign object cases involve instances where the patient’s body has rejected the item placed intentionally and a dangerous abscess results or the object itself has started a massive and deadly infection.

If you or a loved one has been the victim of medical malpractice involving a foreign object left in the body, contact an experienced medical malpractice attorney as soon as possible to research and investigate the facts and circumstances that surround your case.

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