Statute of Limitations in Medical Malpractice Cases: A Hurdle

John Fisher
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Stopping Medical Injustice

The easy answer is yes, there is a specific period within which you must commence a suit against your medical provider if you suspect that he or she has committed an act of negligence against you during the course of your treatment. 

Experienced medical malpractice attorneys know that just saying “yes” to this question is too simple and vague.  This is because many things factor into determining if there is still time left to sue.

First, please understand that the New York statute of limitations for medical malpractice claims is two and a half years.  If the malpractice involves a foreign object left inside a patient’s body and two and a half years has passed, then the injured patient has one year from the date of discovery to commence suit, or one year from the date in which the patient ascertained facts that could have led to such discovery. 

So, the answer is quite complex.  But what I have said so far is simply what the limitations period is.  Harder to determine is when the time period begins to run; when does the clock start to tic?  The moment that the negligent act took place is when the statute of limitations begins to run.  However, in medical malpractice cases the time is suspended, “tolled”, and will not begin to run until the last date that the doctor had an appointment with the patient.  Not just any appointment, but a visit in relation to the negligent act.  This is known as the continuous treatment rule. 

For example, the medical malpractice occurred during surgery, but the doctor scheduled one follow up appointment with the patient.  The date of that appointment is when the limitations period begins if that is the last visit between the two. 

The limitations period can also be tolled for “infancy” or “insanity”.  If the patient is too young to sue, or is not “healthy” enough to sue, the court will extend the time for suit.  The toll will not last forever; in medical malpractice cases, an “infant” still must have the suit commenced within ten years.  There are other instances in which a limitations period can be tolled.

In sum, you have to know the time period according to the appropriate statute as well as when the period begins, which is fact dependant.  You will then need to ascertain if the period was suspended at any point and or if the continuous treatment rule applies. 

This highlights the need for an experienced attorney to investigate the matter.  Also note that the statute of limitations is an affirmative defense; so if the defendant doctor does not use it as a defense against liability, the suit can continue. 

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

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