Medical malpractice is a kind of personal injury case that is brought against hospitals, doctors, nurses, or other medical care professionals.
Medical malpractice occurs when a patient is harmed by a medical professional who acts negligently in caring for a patient or fails to competently perform his or her medical duties.
This is a time limit to sue for medical malpractice.
Every state has enacted laws that can affect a medical malpractice case, including a deadline for filing a lawsuit. A statue of limitation is the law that imposes a time limit for filing certain types of lawsuits after something happens. If a person does not bring a lawsuit within that time frame, barring certain exceptions, they cannot sue, even if they do not discover that any injury has been suffered until it is already too late to sue.
Under New York Civil Practice Law and Rules (“CPLR”) Section 214-a, a plaintiff in a medical, dental or podiatric malpractice action has two and one half years from the “act, omission or failure complained of” to commence an action. This means the two and a half year countdown starts from the date of the malpractice, not the date the mistake was discovered.
There are two exceptions that alter this standard statute of limitations. These exceptions may allow a person to delay or “toll” the date from which the statute of limitations runs. The first is called the “continuous treatment doctrine.” This doctrine applies when the patient continues to be treated by the same doctor for the same condition the malpractice is related to. “Continuity” requires regular sessions between patient and doctor related to the negligent act or omission. A course of treatment with respect to the condition is needed. The mere continuing relation between the doctor and patient is not enough. Implicit in the policy is the recognition that the doctor is in a position to identify and correct his or her malpractice, as well as being best placed to do so.
Essentially, the continuous treatment doctrine postpones the start of the statute of limitations period. A consultation with another doctor or with a medical malpractice lawyer does not bar the continuous treatment doctrine. The statute of limitations begins to run only after the patient terminates treatment with the doctor.
Another exception to the standard statute of limitations of two and one half years is called the “discovery rule”. This is the rule that applies when a foreign object has been left inside a patient. Under this rule, a plaintiff has either two and a half years to bring the medical malpractice case or one year from the “date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier, ” as stated in NY CPLR § 214-a : NY Code – Section 214-A. Thus, if the object is discovered more than two and one half years from the date of surgery when it was left there, the patient will still have a year from the date it was discovered or should have been discovered to file a medical malpractice claim.
What constitutes a “foreign object” has been debated. New York courts have held that a foreign object has to be something inadvertently left inside of the patient such as a sponge, scalpel, clamps or gauze. Objects intentionally placed inside of a patient, such as a pacemaker (or parts thereof) or sutures are not defined as a “foreign object,” even if they were not removed when they should have been removed, or they were placed in a location that they should not have been placed.
When a minor is injured due to medical malpractice, New York extends the statute of limitations to three years past the date of their eighteenth birthday; however, the statute of limitations cannot be extended for more than ten years from the date of the negligent action or omission or the last day of treatment (whichever is later).