Like all states, New York has a statute of limitations for nearly every civil or criminal cause of action, with the infamous exception being murder which has no statute of limitations. The statute of limitations is a time period that a court can never grant permission to extend. This means if the statute of limitations is about to expire or has expired, the claim is forever lost by the plaintiff.
Under New York law, a New York medical malpractice cause of action accrues, or begins to run, on the date of the negligent act or omission. This effectively means that the statute of limitations begins to run when the negligence alleged against the defendant or defendants occurs. From the date of accrual, a New York medical malpractice claim must be brought within two and a half years of the negligent act or omission. This is the statute of limitations period.
There are some exceptions which may toll the statute of limitations. A toll functions as a pause, meaning the statute of limitations won’t start to run until the pause is over. This can extend the beginning of the statute of limitations from starting, theoretically giving the victim more time to respond. But it technically does not extend the statute of limitations period beyond two and a half years.
There is a doctrine known as the “continuous treatment doctrine” which is not technically a toll or an extension, but functions as both. This doctrine means that the cause of action for medical malpractice will not begin to accrue until the last date of continuous treatment. The public policy behind this purpose is that the negligent physician, hospital, facility, healthcare provider, or other person or entity shall be entitled to the opportunity to help fix the mistake, injury, or problem that it caused.
Essentially, this allows the alleged wrongdoer an opportunity to fix it. In giving this opportunity to fix it, it would be unfair to say that the statute of limitations ran from the date of the mistake when the wrongdoer kept trying to fix the mistake. The victim would never commence an action in time because the wrongdoer would just keep trying for two and a half years plus one day so there could be no claim.
Hence why New York law allows the negligent wrongdoer an opportunity to fix it, but allows the victim to have the benefit of the statute of limitations beginning to run at the conclusion of the continuous treatment to fix the mistake.
And the treatment must be continuous. There must be scheduled, regular, and connected treatment for the alleged condition alleged to be medical malpractice. It cannot be sporadic and the victim cannot make the statute of limitations run anew by scheduling an appointment just to say the continuous treatment doctrine applies.
This is an important doctrine to use to help you extend the time you have to commence your medical malpractice case. Don’t you think?
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.