The Statute Of Limitations–Length, Exceptions For Children, Discovery Rules For Foreign Objects, And Lavern’s Law


There are so many technical and complicated parts of medical malpractice, that sometimes it is interesting to just talk about some quick facts to education and inform readers.  Here is a collection of some quick facts you should know:

Medical Malpractice Statute of Limitations – the statute of limitations is a time limit on claims, and starts to tick when the negligent act or omission constituting medical malpractice occurred.  In New York, victims of medical malpractice only have two and a half (2 1/2) years to commence a claim before the statute of limitations expires.  There are some exceptions.

Children in Medical Malpractice Cases – Children have a special statute of limitations period which tolls, or pauses, the statute of limitations from running for 10 years then it is expired.  Thus and intact suffering a birth injury has until age 10 to commence a lawsuit.  This is a helpful extension but best practices are still to file within the 2 1/2 years.

Discovery Rule – foreign objects left inside patients get an additional year from the date of the discovery or when the foreign object should have been discovered to commence a lawsuit, or the initial 2 1/2 years—whichever is longer.

Lavern’s Law – this was just passed by the Senate and Assembly but has not been sent to the Governor for signature yet.  This law extends the time to commence a medical malpractice lawsuit due to a cancer misdiagnose another 2 1/2 years from the date of discovery of the misdiagnosis and medical malpractice.  This is a great thing because most cancer misdiagnosis cases do not realize the medical malpractice until after the statute of limitations has expired.  Lavern’s law is named after a victim who was misdiagnosed and likely could have been saved, when the cancer was discovered it was more than 2 1/2 years from the diagnosis and she could not commence a lawsuit. The cancer spread to multiple parts of her body and she unfortunately died due to the medical negligence of doctors without any rights.