When someone is the victim of medical malpractice, they may not realize it at first, or they may be so caught up in trying to recover that it doesn’t occur to them to seek legal help as soon as possible. That’s unfortunate because New York has restrictions on when medical malpractice suits may be filed. Read on for what you need to know.

What Is a Statute of Limitations?

A statute of limitations is a legal period in which someone can make claims or file lawsuits to request financial compensation because of harm done to them. Once the statute of limitations has passed, expecting a court to consider a case is nearly impossible. The likely outcome of filing too late is that the defense attorneys (attorneys for the other side) will ask to have the case dismissed because it’s past the deadline, and the court will most likely comply with that request.

In New York, the statute of limitations for filing a medical malpractice suit is 30 months (2 ½ years) from the date of the procedure that caused the malpractice. There are a few exceptions to this.

  • If the patient was a minor at the time of the treatment, they have three years from the day they turn 18 to file a claim. However, the claim must only be for something that happened in the previous ten years.
  • If a foreign object was left inside a patient’s body (during surgery, for example) and the object caused an injury, the patient has one year from the date the object was found or should have been found to file a claim.
  • If the patient doesn’t know there’s a problem and symptoms don’t present right away, it’s possible the 30 months could be extended. An example of this would be a doctor either misdiagnosing a condition or not diagnosing a condition at all. The patient goes home and doesn’t realize there is, in fact, something wrong with them until more than 30 months have passed. If it can be proven that the patient was un- or misdiagnosed, they may still be able to file a medical malpractice claim. Note that the foreign objects are medical in nature and not meant to be left inside the body, such as scalpels or gauze. Foreign objects such as pacemakers or intrauterine devices (IUDs) that are deliberately placed in the body, but may be forgotten about later, are not eligible for malpractice in this situation. 
  • If the patient dies as a result of the malpractice, the family can file a lawsuit for wrongful death. That needs to be filed within two years of the death. 

Working with an experienced, knowledgeable medical malpractice attorney can help you determine if your case is still within the New York statute of limitations.

What Is Needed for a Successful Medical Malpractice Suit?

To successfully litigate a medical malpractice case, the person filing the claim (the plaintiff) must prove four things.

  • Duty of care. The medical professional owed the patient a duty of care. Often all that’s needed to prove this is the fact that there was a doctor-patient relationship demonstrated by the patient being seen by the doctor. It doesn’t mean the medical professional had to be perfect, but they had to follow the professional standards as closely as possible.
  • Breach of the duty of care. This means the medical professional didn’t honor the duty of care through negligence or omission. To prove this, the plaintiff and their attorney should be able to demonstrate that the care given (or not given, depending on the case) didn’t meet professional standards within that medical specialty.
  • Injury. This can be the most challenging point to prove, and it’s entirely dependent on the two points above. The medical professional owed the patient a duty of care but didn’t live up to that commitment. The patient was harmed because of the breach of the duty of care. The injury must be connected to the breach of the duty of care.
  • Damages. This demonstrates that the plaintiff faced damages because of the medical malpractice. Typically this is in the form of out-of-pocket medical bills, lost wages due to time away from work or no longer being physically able to work, and ongoing expenses for things like physical therapy. It may also be noneconomic damages, such as the trauma the patient experienced because of the malpractice.

What Should I Do if I Think I Have a Medical Malpractice Case?

Call the Law Offices of Thomas Lavin at 718-829-7400 for a free case evaluation. Medical malpractice cases are complex. They’re also likely going to involve lawyers for the medical provider who are experienced in getting these cases reduced or dismissed, so having an experienced, knowledgeable medical malpractice attorney working on your behalf is highly recommended.

There is one thing you should never do when getting ready to embark on a medical malpractice case, and that’s have any conversations or communications with the medical provider’s insurance company or attorneys. Their primary goal is to reduce or dismiss any liability for their client to avoid having to pay the claims. They may try to get you to say something that could be interpreted as not holding their client responsible, or they may try to coerce you into agreeing to a much lower settlement than you might be eligible for. Don’t respond to any communications, but forward them to your attorney instead.