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You Were Injured by a Doctor Here in New York. Here's How to Know if Your Medical Malpractice Case is Timely.

First, I need to know WHEN the wrongdoing happened.

I need to know WHERE the wrongdoing happened.

I need to know if the doctor who treated you is a 'PRIVATE' physician.

I need to know if the hospital where you received improper care was a 'PRIVATE' hospital.

I need to know if you're an ADULT.

I need to know if there was something left INSIDE of YOU.

I need to know if this happened in a MUNICIPAL or a STATE hospital.

I need to know if you continued to treat with the same doctor for the same condition or complaint after the wrongdoing occurred.

This information will help me determine if your matter is timely.

You should know that in some cases, I cannot tell just from a brief phone call.

In some cases the only way I can make an educated decision is if we obtain ALL of your medical records.

After obtaining ALL of your medical records then I must scour every page.

I am looking for clues.

I am looking for cues.

I am looking for reasons.

Reasons why you returned to the doctor.

Did you return because you had a problem or did your doctor ask you to return for follow up?

Did your doctor establish a plan of treatment after you suffered injury or did he tell you to return only if you had a problem?

The answers to those questions help determine if your matter is timely.

Did your matter happen during your labor and delivery of your baby?

Did it happen during surgery?

Did it happen in a doctor's office?

All the answers to these questions will determine whether your matter was timely.

There's no 'one size fits all' answer to whether your matter is timely.

I could give you a general time frame in which to determine if you matter MIGHT be timely.

But that won't help you.

I could give you a time frame in which you have to file a notice of claim against a municipal hospital.

But that won't help you either.

I could tell you what all those time limits are as of today, January 30, 2017.

However, I will tell you right now that you CANNOT and MUST NOT rely on this information.

***WARNING***

YOU MUST NOT RELY ON THE TIME LIMITS YOU READ IN THIS ARTICLE OR ANYWHERE ONLINE.

Why not?

Because the time limits sometimes change.

You might read this one week after I write this.

You might read this one month later.

Maybe you read this five years later.

The problem is that time limits do change.

The time limits I'm going to tell you about are good ONLY as of today, January 30, 2017.

So let's delve down into these time limits to help you understand whether your medical malpractice matter MIGHT be timely...

You believe your doctor screwed up.

You believe his carelessness caused you harm.

You decide you have no choice but to sue him.

For all the harms, losses and damages you suffered because of his carelessness.

If you bring a lawsuit against your doctor, that's known as a medical malpractice case.

This is considered a 'civil' lawsuit.

It's not a criminal case.

Nobody is going to jail.

Nobody is going to lose their license to practice medicine.

A civil case seeks money as a form of compensation for your damages.

I get calls every day from people wanting to know if they have a valid medical malpractice case.

I get calls from people across the country wanting to know if they have a valid medical malpractice case.

The reality is that I only practice in New York.

I can only tell you what the law is here in New York.

Since I do not know the law in other states, I have no choice but to refer you to another attorney who can answer your legal questions if this happened outside of New York.

You need to know that every civil lawsuit has a time limit in which you must file your case.

If you miss that time limit, you are out of luck.

If you fail to file your lawsuit within a very specific time frame described by law, it doesn't matter what happened to you.

You are out of luck.

The laws are very strict when it comes to how much time you have to file a lawsuit against your doctor and hospital staff.

You should know that there are different time limits for different types of medical malpractice matters.

The time limit is different for a child compared to an adult.

The time limit is different for baby who was injured at birth compared to an adult.

The time limit to file a lawsuit is different if the injury occurred in a municipal hospital compared to a private hospital.

The time limit is different if a surgical instrument was left inside of you.

Let me tell you what the general rule is and then I'll give you some exceptions.

Here again is an important warning as you read this article...

You can never ever rely on the information I'm providing to you in this article.

Let me say that again.

Under no circumstance are you to use the information in this article to determine whether your particular matter is timely.

Why?

It's because time limits change.

The legislature in New York will sometimes change the time limit in which an injured patient has to file a lawsuit.

If you were to incorrectly rely on information that is timely at the time of this writing, but different by the time you read it, you could be putting your case in jeopardy.

That is why you must always reach out to an experienced attorney to determine if your matter is currently timely.

Okay, now that you've been fully warned, let me tell you about the general time frame as of today, January 31, 2017.

You typically have only 2 1/2 years from the date of any wrongdoing within which to file a lawsuit against a private doctor or private hospital here in New York.

This time-limit is known legally as the statute of limitations.

When evaluating whether your case may be timely, the law does not ask why you only learned about the problem now.

We typically have to look and see when did the wrongdoing happened.

Judges have often used the phrase “ignorance of the law is no excuse” to explain that someone realizing now that something was done wrong to them does not allow them to bring a case that was not timely filed.

Here's how this scenario typically plays out...

You go in for a surgical procedure and suffer massive complications.

Even though the doctor told you you would be home the next day, you are now in the hospital for three weeks undergoing corrective surgeries and rehabilitation.

You then are sent home to recuperate.

You require a visiting home nurse for months.

You're unable to return to work for many months.

You are unable to resume your daily activities.

You're incapacitated and your family must now chip in to help you not only with your own personal activities but also your household chores.

The more you think about it, the more you believe that your doctor was responsible for causing your injury.

You believe that your doctor was careless.

You also believe that had he been more careful, none of these injuries would have occurred.

In fact, one of your treating surgeons actually confirms this.

In the weeks and months following your hospital stay, this thought festers in your mind.

You finally get the idea that you need to speak to an attorney to evaluate whether you have a valid case.

You don't know an attorney who handles these types of cases.

You don't know a friend or family member who could recommend a trusted attorney.

You figure you have plenty of time to look for a lawyer to answer your legal questions.

Since you don't believe there is any rush to talk to an attorney, you put this on the back burner.

You are focused on getting better and getting back to normal.

Three years later, while a party you have a conversation with someone you just met.

He tells you he's an attorney.

You start telling him your tale of woe.

One of the first questions he asks you is “When did this happen?”

You tell him it happened more than three years ago.

That's a red flag.

That immediately signals that your time to file your lawsuit against your doctor may have already expired.

“But wait!” You say.

“I continued to see and treat with my doctor for other problems after my surgery. Shouldn't that extend the time that I have to file my lawsuit?”

The answer is that it may.

There are some instances where you continue to see and treat with the original doctor who caused you harm.

In some instances, it may be possible for you to file your lawsuit beyond the original time as long as your continued treatment with your doctor related to your original complaint and original problems.

Many people automatically assume that because they kept going back to the doctor's office that means there was continuous treatment.

This is simply not true.

You might have been going back for other matters that are unrelated to your original complaint and original treatment.

The only way to be absolutely certain about whether you can get the benefit of continuous treatment is to obtain all of your medical records and then to scour them page by page to determine exactly what you did on each and every visit.

It is critical to evaluate what the doctor did on each of those visits.

When looking through your medical records to determine whether there is a continuous treatment that might extend the time you have to file your lawsuit, we must identify why you went back to the doctor's office.

Was this because of a visit that you originated?

Was this because the doctor wanted to see you back at a certain time?

Who made the appointment and why?

When you are in the office, what specific complaints, if any, did you have?

What did the doctor do on each and every visit?

What was the doctor's intention and what was his plan and course of treatment for you?

Did he want you to return to the office?

Did he tell you that your treatment is finished?

Did he tell you that you should return only if there was a problem?

The answers to each of these questions are critical to determining and arguing whether there is or is not ongoing continuous treatment for the same problem and same complaint that you originally went to him for.

Let me turn to municipal hospitals for a moment.

Let's say you were treated at Bellevue Hospital or Jacobi Hospital or Queens General Hospital or Kings County Hospital or Elmhurst Hospital.

These are municipal hospitals within the five boroughs of New York City.

There is a legal entity that is responsible for each of the municipal hospitals.

That's known as New York City Health and Hospitals Corporation.

There are very specific requirements that must be met in order to properly file a claim with the legal entity that controls these municipal hospitals.

As of today, January 31, 2017, you have only 90 days from the date of any wrongdoing in which to file a notice of claim with the legal entity that owns, operates and maintains the municipal hospitals.

A notice of claim is a document that puts New York City Health and Hospitals Corporation on notice that they can expect a lawsuit to follow in the near future.

Technically, it gives them an opportunity to do a basic investigation to see what this is all about.

The law requires that before you can file a lawsuit against New York City Health and Hospitals Corporation that this notice of claim had to have been properly and timely filed.

A notice of claim describes where the wrongdoing occurred.

It also goes into some detail to explain what the wrongdoing was and what injuries you suffered because of that wrongdoing.

It also calls upon us to place a value on your injuries.

This gives the New York City Health and Hospitals Corporation an idea of the severity of your injury.

What happens though if you do not realize you suffered injury at a municipal hospital within 90 days from the date the wrongdoing happened?

There is a process where an attorney can ask a court for permission to file a late notice of claim.

Let's say that it's been six months since you were treated at Bellevue Hospital.

You believe the doctors and hospital staff at Bellevue screwed up.

You also believe you suffered significant injury at Bellevue.

You now seek an attorney to help you file your notice of claim.

Clearly, your time to file within the first 90 days has expired.

You believe you have a valid case.

You believe the hospital staff screwed up and caused you significant injury.

When we ask a court for permission to file a late notice of claim, not only do we have to show the court all of your medical records, we have to have a medical expert confirm these three things...

(1) that the doctors and hospital staff at this municipal hospital violated the basic standards of medical care,

(2) that the wrongdoing was a cause of your injury and

(3) your injuries are significant or permanent.

All of those things must be confirmed by a medical expert.

However, that is not enough for a judge to allow you to file a late claim. 

The judge will want to know why there was a delay.

The judge will want to know whether the medical records are still in existence at the hospital.

The judge will also want to know whether the doctors and hospital staff who treated you are still employed at the hospital.

Just because the people who were involved in your care are still working at the hospital, and just because a short period of time has elapsed beyond the 90 days, does not automatically mean that a judge will agree with your request to file a late notice of claim.

There is a great deal of case law surrounding people who were trying to file late notices of claim.

Some of the cases allow a patient to file a late claim.

Many do not.  

What happens though if two years after the wrongdoing occurred you want to file a late notice of claim against the New York City Health and Hospitals Corporation?

In all likelihood, you're going to have great difficulty finding an attorney who tells you that your matter is timely.

In all likelihood, you're going to find it challenging to find a lawyer willing to  take on your matter because of the length of time you waited before seeking to file your late notice of claim.

To learn more about the time limits in malpractice cases, I invite you to listen in and watch a lecture I gave to 60 attorneys at the New York City Bar Association...