New York Statute of Limitations for Medical Malpractice Cases

Exception # 1: Malpractice Causing Injuries to Children

In New York State, medical malpractice statute of limitations in new york require that lawsuits brought on behalf of a child must be brought within ten (10) years from the incident of malpractice, but it cannot be started after the child reaches the age of 21 ½.

In addition to claims the child may have, the parents or guardians of an injured child may also bring a claim for damages. These are referred to as “derivative damages,” and include: expenses and losses incurred for medical care and supplies, the value of nursing services performed for the child by the parent or guardian, and the value of any services that the child would have otherwise performed before the age of eighteen had he or she not been injured. Claims for derivative damages must be brought within 2 ½ years from the date of the malpractice.

Exception # 2 – Continuous Treatment

If the patient continues to receive treatment from the provider who committed the malpractice, the date from which the 2 ½years deadline begins is computed from the last date of “continuous treatment.” “Continuous treatment” does not include examinations at the request of the patient for the sole purpose of determining the patient’s condition. The court strictly reviews medical visits or treatments if they believe it is an attempt to extend the time to bring a lawsuit. When possible, it is always preferable to bring a lawsuit from the date the malpractice occurred.

Exception # 3 – Foreign Objects Left In Patient

If a “foreign object” (sponges, pads, instruments, etc) is determined to have been left in a patient, a lawsuit may be started within one year of the date the foreign object was discovered, even if that date is later than two and a half years from the date of the surgery. A “foreign object” does not include a chemical compound, fixation device or prosthetic aid or device that was intended to be left in the patient as part of the treatment.

Exception # 4 – Insanity

If a patient is determined to be insane, the time limit stops running until the disability ceases. The maximum extension of the time limit, however, is 10 years.

Exception # 5 – Wrongful Death

If a patient dies as a result of malpractice, two legal actions can be brought: a wrongful death case on behalf of the patient’s heirs and a claim for damages on behalf of the patient’s estate for costs accrued before the patient’s death. The wrongful death case must be brought within two years from the date of death. Damages for the estate must be brought within 2 ½ years from the date of the malpractice (unless one of the exceptions applies). It is possible that the time allowed to bring a wrongful death lawsuit can expire before the underlying lawsuit for pre-death damages. If the patient lived for more than six months after the malpractice occurred, the pre-death damages claim may expire before the wrongful death lawsuit expires.

Exception # 6 – Shortened Time Periods for New York State Agencies

Many hospitals in New York State are operated by cities, counties or specially-formed governmental corporations. Unlike some other states, New York State has waived its immunity. Therefore, a medical malpractice claim or wrongful death claim can be brought against the State of New York and/or any of its counties, cities or governmental units for negligent acts, errors or omissions.

Either the lawsuit or a “notice of claim” must be served on the government agency within 90 days of the date of the malpractice. The lawsuit must be filed within one year and 90 days from the date of the malpractice. Under limited circumstances, the time to file a “notice of intent” or a “notice of claim” may be extended by the court. At least one court has held that the 10-year limitation on claims brought on behalf of children does not apply to lawsuits brought against the state.

Exception # 7 – Claims Against U. S. Government

The United States government may be responsible for injuries and damages caused by the medical malpractice of its employees and agents. Such malpractice can occur at government-run hospitals, clinics, laboratories and facilities, veteran’s hospitals and on military bases within the United States and its territories.

The Federal Tort Claims Act (FTCA) imposes two different deadlines for bringing lawsuits.

• First, a claim form must be filed, in writing, with the appropriate federal agency within two years after the malpractice occurs or the injury is discovered.
• Second, the lawsuit must be filed within 6 months after the federal agency with which the claim was filed mails a final denial of the claim

Exception # 8 – Miscellaneous Exceptions

There are a number of other rules and exceptions, including circumstances when one of the intended parties to a lawsuit dies or is in the military, or when a health care provider leaves the state and is beyond the jurisdiction of New York courts. Consult an experienced malpractice attorney as soon as possible to determine the specific time limitations that may apply to your case.