A child who suffers a birth injuries is an actually heart wrenching time for an entire family. In addition to the physical harm suffered by the child—and possibly the mother—there may also be emotional and financial harm as well. Generally, birth injuries are very difficult to assess because there is a high likelihood of naturally occurring harm as well the potential for New York medical malpractice. Particularly with conditions such as cerebral palsy, the investigation is incredibly fact dependent. The longer you wait to bring your potential claim to a trained New York medical malpractice attorney, the less and less likely you will be able to recover.
However, there is another obstacle in the way called the statute of limitations. Essentially, the statute of limitations prescribes a period of time to bring a claim for a specific cause of action such as medical malpractice or personal injury. If a plaintiff attempts to bring a claim outside of that prescribed period, the statute of limitations works to effectively bar that claim. Meaning, the defendant can make a motion to dismiss the claim based on untimeliness. This is because the purpose of a statute of limitations is to prevent stale claims and not leave potential claims against defendants looming over their heads.
In New York, the vast majority of the statute of limitations is in the Civil Procedure Law and Rules. Malpractice in generally—such as lawyers, accountants, and other professionals—is three years as prescribed by CPLR 214. However, medical malpractice for physicians is slightly shorter at two and a half years pursuant to CPLR 214-a.
But do not fret! This does not mean that if your child is past two and a half years old you cannot sue your doctor for a birth injury. There are something called tolls to statute of limitations. A toll essentially “freezes” the statute of limitations and prevents it from running. There are a few different tolls which operate slightly differently, but for our purposes the applicable toll for a birth injury would be in CPLR 208 which is infancy.
Under CPLR 208, the infancy toll normally freezes the statute of limitations and prevents it to run until the minor reaches the age of majority. At that point, the minor-now-adult will have either (1) three years to bring the claim if the claim has a statute of limitations which is for three or more years, or (2) if the claim has a statute of limitations under three years, that time. So for example, a breach of contract has a six year statute of limitations. If a 10-year-old enters into a contract which is breached by the defendant, the statute of limitation will toll until he turns 18 and then give him three years to sue. In contrast, if a 10-year-old is struck by the defendant—a battery—once the minor turns 18 he will only have one year to sue the defendant.
But, of course, CPLR 208 has an exception. It would appear that if a baby suffers a birth injury, the statute of limitations would be frozen until age 18 then the child would have another two and a half years to sue. But that is not the case. CPLR 208 has an exception for medical malpractice claims. This exception provides that the infancy toll cannot be longer than ten years. Meaning, if the child has a birth injury resulting during labor or delivery, the claim must be made before age ten. However, some birth injuries may occur up until age three so the claim must be filed by age thirteen.
These are very important limitations to be aware of. Failing to comply with the statute of limitations is almost a guaranteed dismissal of the action!
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] . 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.