In order to successfully bring a claim founded in medical malpractice, a plaintiff patient must plead and prove several basic elements. First, the plaintiff must show that he or she was owed a duty of care by the medical professional. Second, there must be proof that the standard of care was breached. Third, the patient must show that the medical professional’s breach was the proximate cause of his or her injury. Fourth, the patient must prove that he or she suffered an injury for which compensation may be granted.
Experienced medical malpractice attorneys know that the medical malpractice suit must also be commenced within 2 ½ years from the date of the medical professional’s negligence. This is what the statute of limitations for medical malpractice claims requires. Note, however, that the statutory period is tolled if the patient is receiving continuous treatment from the negligent doctor for the condition that the doctor was treating at time of the negligent act. This means that the limitations period does not start until the last doctor’s visit with the alleged negligent medical professional.
Any failure to obey the limitations period where there is no continuous treatment is fatal to the plaintiff’s case. Consider the following case, Breytman v. Riskevich, decided on June 12, 2014 by the Kings County Supreme Court.
The plaintiff was suing several doctors in relation to surgical treatment for acoustic brain neuroma. The plaintiff sued after 2 ½ years, but claimed that continuous treatment tolled the limitations period. It was in January 2009 that the plaintiff received a hearing test from defendant, Dr. Ovchinsky. The doctor attributed the plaintiff’s hearing loss to old age and not from any medical condition. The plaintiff left this doctor’s care and sought care from other physicians who were unaffiliated with Dr. Ovshinsky.
The plaintiff ended up receiving surgery from the other doctors and did not visit Dr. Ovshinsky until September 2011 for physical therapy. This visit was more than 2 ½ after the previous visit and at this point the plaintiff had yet to file suit.
The plaintiff eventually filed suit and claimed that the second visit was part of continuous treatment related to the first visit almost three years earlier. The court, however, ruled that the two visits with this doctor were insufficiently related to allow invoking the continuous doctrine. As such, the case against Dr. Ovshinsky was dismissed.
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