All claims, whether criminal or civil, have time periods in which a person must commence the claim. Commencing means to actually start the lawsuit. These time periods are known as the statute of limitations period. Every claim has a statute of limitations period, even if the legislature did not specifically prescribe one as there is a catch all section. Each statute of limitations period may be different per the claim.
Under New York law, a claim for New York medical malpractice must be commenced within two and a half years from the date of the alleged negligent act or omission. This means the lawsuit must be started against the defendants within two and a half years or the case will forever be barred.
There are exceptions to this rule. First, the continuous treatment doctrine allows a defendant to continue to treat the patient in an effort to fix the mistake. This also allows a victim of New York medical malpractice to have until the defendant lets the patient go from care before having to commence the lawsuit. It helps to extend the time to commence, which can be necessary if the injury is complicated.
Another exception which extends the time is the discovery rule. This rule is applied with a foreign object is left inside a patient that should not be there. This includes something such as a surgical sponge. This gives the victim of medical malpractice an alternative period to commence a lawsuit within the two and a half years, or from one year of discovery of the foreign object. The one year also begins to run from the date that the item should have been discovered. The victim gets the longer of the two and a half years or the one year discovery.
Additionally, if the medical malpractice involves a child, the medical malpractice case is extended for 10 years maximum, or to the age when the child turns 18 plus the two and a half years. In no event will it every extend to more than 10 years. This also gives more time to a child victim and his or her family to commence an action.
Best practice is to always commence within two and a half years and to never rely on an extension.
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