There are many layers to medical malpractice claims. One of the most important layers to a medical malpractice claim is knowing where, when, and how to commence an action or make a claim. In New York, most cases are commence by filing a summons and complaint within two and a half years of the alleged act of negligence. This two and a half year period is called the statute of limitations, and it is absolutely necessary to successfully commencing an action. You cannot commence an action outside the statute of limitations period.
Where medical malpractice law gets interesting is when the medical malpractice was caused by a federal entity. This is because the federal government, the United States of America, is IMMUNE from lawsuits. That is right—the government has what is known as sovereign immunity, meaning you cannot sue the federal government for anything.
HOWEVER, there are exceptions to sovereign immunity. This exceptions allow you to effectively pierce sovereign immunity if and ONLY IF those exceptions are met. One exception is for negligence cases, where a victim has been injured due to the negligent conduct of an employee of a federal entity. This includes medical malpractice.
The exception creates parameters that a victim must comply with or the case will be completely barred. One parameter is that the claim must be brought within two years of the alleged negligent act or omission. This is a shorter statute of limitations period than under New York law. Due to the conflict of laws approach, this means the SHORTER statute of limitations period will govern even though New York law provides a longer statute of limitations.
Another parameter is that an administrative claim must be filed first, rather than commencing via summons and complaint. This allows the government to review the claims and damages and, sometimes the government will admit the claim and pay the damages immediately. In medical malpractice cases this is not too common, but it is very possible and it does occur.
The doctrine of sovereign immunity is an important one and the exceptions to filing must be complied with in order to sue the United States government for negligence. In medical malpractice cases, commonly a VA hospital, this can be a big hurdle in your case which you need to protect against.
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 firstname.lastname@example.org. 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.