Statute Of Limitations And Medical Malpractice


The short answer is yes. The statute of limitations is a rule that limits the amount of time a plaintiff has to bring a cause of action. In most cases, a victim of medical malpractice only has two and a half years to start a malpractice action against a health care provider who has been negligent. There are some exceptions, including a foreign objects exception.

The exception for foreign objects is called the ‘discovery rule.’ The discovery rule creates an alternative period for the statute of limitations. The statute of limitations begins to run when the foreign object is discovered, rather than when the negligence occurred, as it does in most medical malpractice cases. Plaintiffs either have the two and a half years provided under the Civil Practice Law and Rules, or one year from when the object was discovered, whichever is longer.

The New York Court of Appeals has adopted a restrictive rule when applying the discovery rule, in that it only applies to foreign objects. Foreign objects are defined as objects that have been inadvertently left inside the patient. Such objects can include surgical clips, forceps, pads, wire, scalpels, gauze, or other tools. This rule does not apply to an object that had been placed intentionally inside the patient and then later forgotten to be removed. These devices are called implanted devices or “fixation devices” and can include sutures, intrauterine devices, pacemakers, and other related objects.

There is a significant amount of research involved in evaluating foreign object cases to determine whether an object was left inside the patient’s body negligently, or intentionally placed there for good. Unfortunately, in most foreign object cases, the patient’s body has rejected the item, resulting in a dangerous abscess or the object has started a massive, and potentially deadly, infection.

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