What Is Medical Malpractice?

Malpractice is professional negligence and medical malpractice is the negligence of a health care provider. Medical malpractice occurs when a health care provider fails to act in accordance with accepted medical practice. This can either occur when a provider does something that shouldn’t have been done or fails to do something that should have been done.

When such a failure results in serious injury, death or the loss of a substantial chance of a better outcome or result, the medical care provider is accountable to the patient for all of the injuries and damages that are the result of his or her negligence.

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What Time Limits Apply to A Bringing Claim For Medical Malpractice?

There are strict time limitations that exist after which a lawsuit may not be brought. These time limitations are different for different types of claims and differ from state to state. The time within which a medical malpractice lawsuit must be brought is generally determined by the law of the state where the malpractice occurred. The law of each state is different and you should contact an attorney who knows the law, and its exceptions, in the state in which you believe the malpractice occurred.

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General Time Limits For Bringing A Claim For Malpractice In New York State

In New York State, the general rule is that a medical malpractice lawsuit on behalf of an adult patient must be brought within two and a half years from the act or omission constituting the malpractice. There are some limited exceptions to this general rule. (To read the text of the specific law see: New York Civil Practice Law and Rules section 214-a). CPLR 214-a

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EXCEPTIONS TO THE GENERAL TIME LIMITS FOR BRINGING A CLAIM FOR MALPRACTICE IN NEW YORK STATE:

Exception # 1: Malpractice Causing Injuries to Children

In New York State, a medical malpractice lawsuit that is brought on behalf of a child must be brought within ten years from the act or omission constituting the malpractice. However, under no circumstances, can the lawsuit be started after the child reaches the age of twenty and a half years.

In addition to claims that a child may have for malpractice, the parents or guardians of an injured child may also have a claim for damages arising from the child’s injuries. These are often referred to as “derivative damages.”  “Derivative damages” include: the fair and reasonable value of expenses and losses incurred, for medical, hospital, nursing services and supplies necessary to treat the child’s condition; the reasonable value of future nursing services necessarily performed by the child’s parent or guardian; and the economic value of any services that the child would have otherwise performed before the age of eighteen had he or she not been injured.

While the time to bring a lawsuit on behalf of a child is not limited to two and a half years from the date of the malpractice, any claims for “derivative damages” that the child’s parents may have as a result of the child’s injuries must be brought within two and a half years from the date of the malpractice.

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Exception # 2 – Continuous Treatment

In some limited circumstances, when the patient continues to receive treatment after the date of the malpractice from the provider who committed the malpractice in a “continuous course of treatment” the date from which the two and a half years is computed does not begin until the last date of “continuous treatment,” “Continuous treatment” does not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition. As the “continuous treatment” rule is an exception to the general rule that the time to bring the lawsuit starts on the date the malpractice occurs, any attempt to extend the time to bring a lawsuit by reason of the “continuous treatment” rule will be strictly scrutinized by the court and may be rejected. Therefore, when possible, it is always preferable to compute the time to bring a lawsuit from the date the malpractice occurred. (To read the text of the specific law see: New York Civil Practice Law and Rules section 214-a). CPLR 214-a

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Exception # 3 – Foreign Objects Left In Patient

If the lawsuit is based upon the discovery of a “foreign object” in the patient, the action may be started within one year of the date of such discovery or of the discovery of facts which would reasonably lead to such discovery, even if that date is later than two and a half years from the date of the surgery. Such cases may be brought within one year from the date upon which the foreign object is discovered. Examples of “foreign objects” that are often found in patients include: instruments; sponges; pads; and gloves. A “foreign object” does not include a chemical compound, fixation device or prosthetic aid or device or any other object that was intended to be left in the patient as part of the treatment. (To read the text of the specific law see: New York Civil Practice Law and Rules section 214-a). CPLR 214-a

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Exception # 4 – Insanity

A claimant's insanity tolls (that is, stops) the above-noted limitations period from running until the disability ceases, but in medical malpractice cases this can only extend the limitations period a maximum of ten years. (To read the text of the specific law see: New York Civil Practice Law and Rules section 208). CPLR 208

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Exception # 5 – Wrongful Death

If the patient dies as a result of the malpractice, an action to recover damages for the patient’s wrongful death must be brought within two years from the date of death. (See: New York Estate’s Powers and Trusts Law section 5-4.1). The damages that can be recovered by the patient’s heirs in a wrongful death suit are separate from the damages that the patient’s estate may recover that accrued before the patient’s death. While the lawsuit for wrongful death must be brought within two years from the date of death, an action to recover for damages incurred before death must be brought within two and a half years from the date of the malpractice, unless it fits within one of the above exceptions. Thus, it is possible for the time to bring a wrongful death lawsuit to expire before the time to bring the underlying lawsuit for pre-death damages expires. Similarly, in situations when the patient lives for more than six months after the malpractice occurs, it is possible for the time to bring the underlying lawsuit for pre-death damages to expire before the time to bring the wrongful death lawsuit expires. (To read the text of the specific law see: New York Estates Powers and Trusts Law section 5-4.1) EPTL 5-4.1

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Exception # 6 – Shortened Time Periods

In New York State, a lawsuit for medical malpractice or wrongful death can be brought against the State of New York, and any of its counties, cities, and governmental corporations for the negligent acts, errors or omissions of their institutions, employees or agents. The State of New York has waived its immunity, including that of its political subdivisions. (N.Y. Court of Claims Act section8). Court of Claims Act

If the claim is made against the State of New York, either the lawsuit or a “notice of intent” to commence a lawsuit must be filed within 90 days of the date of the malpractice.

If a “notice of intent” is filed within the 90 day period, the lawsuit must be filed within two years from the date of the malpractice.

Many hospitals in New York State are operated either by cities, counties or specially-formed governmental corporations. If the claim is made against such an entity, either the lawsuit or a “notice of claim” must be filed within 90 days of the date of the malpractice. If a “notice of claim” is filed within the 90 day period, the lawsuit must be filed within one year from the date of the malpractice. General Municipal Law

Under some limited factual circumstances, the time to file a “notice of intent” or a “notice of claim” may be extended by a court.

All of the above general rules may also be subject to the exceptions referred to above for injuries to children, continuous treatment, foreign objects and insanity. In addition, at least one court has held that the ten year limitation on claims brought on behalf of children does not apply to lawsuits brought against the State of New York and that a lawsuit may be brought on behalf of a child at any time before the child attains the age of twenty and a half years.

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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.

Lawsuits against the United States government and its agencies and employees are brought pursuant to the provisions of the Federal Tort Claims Act. The FTCA imposes two different and distinct time deadlines for the bringing of such lawsuits. First, a claim must be filed in writing with the appropriate federal agency within two years after the malpractice occurs or is discovered (that is when the person bringing the claim is in possession of the critical facts that he or she ahs been injured and the cause of the injury). 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.

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Exception # 8 – Miscellaneous Exceptions

In addition to the rules and exceptions that have been set forth above, there are a number of other rules and exceptions set forth in the laws of New York or recognized by New York courts that can effect the time limitations for bringing a lawsuit arising from medical malpractice. These include, but are not limited to, circumstances when one of the intended parties to a lawsuit dies or is in the military service or when a health care provider leaves the state and is beyond the jurisdiction of New York courts.

As each potential lawsuit is unique, it is essential that you contact an experienced malpractice attorney as soon as possible to determine the specific time limitations that may apply to your case.

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