If you have been the victim of medical malpractice, you probably could not care less whether the hospital that mistreated you was privately or publicly owned. Unfortunately, this distinction can make quite a difference when it comes to actually filing a medical malpractice lawsuit in New York. That is because there are special rules that apply to all civil lawsuits against government agencies, including public corporations, which can effectively bar you from the courthouse before your case even begins.
New York’s 90-Day Notice of Claim Requirement
When you need to file any kind of civil lawsuit, you typically need to comply with a legal deadline known as the statute of limitations. For medical malpractice cases in New York, the statute of limitations is 30 months from the date of the alleged medical error. This start of this 30-month period can be delayed or “tolled,” however, if the plaintiff did not actually discover the medical malpractice until a later date, which is a common scenario.
So why does it matter if the medical malpractice defendant is a private or public hospital? Well, under normal circumstances a private citizen cannot sue the government or any of its subdivisions. This is a legal principle known as sovereign immunity, which New York inherited from English common law, where you could not sue the King in his own courts. In modern practice, sovereign immunity bars lawsuits against the state unless the legislature gives consent, usually by adopting a specific statute allowing certain claims.
The New York legislature has adopted such a statutory waiver that permits individuals to sue the state–or any subdivision or “municipal corporation” under its authority–for the same kinds of personal injuries as any private person or company. In other words, you can sue a public hospital for medical malpractice.
But there is a catch. Under New York General Municipal Law Section 50-E, before suing a public corporation, the plaintiff must first serve a separate “notice of claim” on that corporation within “90 days after the claim arises,” or in the case of wrongful death cases, within 90 days of the appointment of a personal representative for the victim’s estate. This notice is a precondition of filing a lawsuit. So if you do not serve the notice within 90 days, your lawsuit cannot be heard, even if it was filed within the applicable statute of limitations.
This rule can present unique complications in New York medical malpractice cases, particularly where a doctor or hospital’s mistake is not discovered until well after the 90-day notice period expires. In a 2020 law review note, Jessica Simon cited a 1979 case where an “unsupervised” resident at a public hospital performed an improper breech birth of twins. Both children subsequently experienced developmental disabilities. But it was only about a decade later that the parents learned their children’s condition was likely the result of the resident’s mistake.
Ultimately, Simon noted, the courts granted the parents leave to file a late notice of claim. They were able to proceed with their lawsuit and recovered a “substantial sum” on behalf of their children. Still, as Simon pointed, the parents would never have had to jump through this additional legal hoop had they sued a private hospital as opposed to one owned by a public corporation.
Getting Judicial Leave to File a Late Medical Malpractice Claim
Even today, it is still possible for a New York medical malpractice plaintiff to seek leave to file a late notice outside of the 90-day period mandated by Section 50-e. A judge must consider several factors in deciding whether to grant such leave, including the following:
- whether the public corporation (or its attorney) acquired actual knowledge of the substantive facts surrounding the plaintiff’s claim within the 90-day period or a reasonable time thereafter;
- whether the plaintiff is an infant (i.e., a person under the age of 18);
- whether the plaintiff is mentally or physically incapacitated;
- whether the plaintiff has a “reasonable excuse” for not filing a claim within the 90-day period;
- whether or not the delay in providing notice would prejudice the public corporation in its ability to defend against the plaintiff’s claims on the merits.
To provide a more recent practical illustration, a New York State Supreme Court judge recently granted leave to a medical malpractice plaintiff to serve a late notice of claim on a public hospital in New York City. According to court records, the plaintiff went to the hospital in January 2022 complaining of severe abdominal pain, nausea, and constipation. A CT scan determined the plaintiff had a bowel obstruction. The hospital admitted the defendant and surgeons performed a laparotomy three days later.
The plaintiff subsequently alleged that negligence during the surgery and while receiving post-operative care at the hospital led to further complications and injuries. After his discharge in April 2022, he filed a medical malpractice lawsuit. As more than 90 days had elapsed since the surgery, however, he required leave from the court to file a late notice under Section 50-e.
The judge granted leave, noting the public hospital had “actual knowledge” of the plaintiff’s claim within 90 days based on the hospital’s own medical records detailing his post-op complications. Additionally, the judge said the plaintiff had a “reasonable excuse” for filing a late notice of claim, as the hospital itself failed to provide full access to the plaintiff’s medical records until after the 90-day period expired. And looking at the case as a whole, the court concluded that the hospital would suffer no “substantial prejudice” in defending itself due to the late notice.
Contact Our New York Medical Malpractice Attorneys Today
Medical malpractice cases in New York are always complicated regardless of whether the defendant is a private doctor or a public hospital. That is why it is crucial to work with an experienced New York medical malpractice lawyer who will fight for your rights in court. Contact Powers & Santola, LLP, today to schedule an initial consultation.
