New York’s short statute of limitations on medical malpractice lawsuits might be extended if a recently introduced bill is passed, according to the New York Daily News. Currently, a victim of medical malpractice must sue within two and a half years of the malpractice – and within 15 months if it occurs in a city hospital. Most states have 'date of discovery' statute of limitations, which allow patients to pursue legal action from the time they discover the consequences of wrongful medical care. New York is one of six states that does not have a discovery statute, meaning patients' clock starts from the date the bad care occurred.
For instance, if you suffered harm and there were violations of the standard of care in a municipal hospital within the five burroughs of New York City, you are required to file a notice of claim first within 90 days from the date of the wrongdoing. Then, you are also required to file your lawsuit within one year or 90 days from the date of the wrongdoing. This timing is valid as of today, June 18, 2013. Importantly, anyone reading this blog post cannot rely on misinformation since the time to file a claim and file a lawsuit may have changed by the time you are reading this article. The only way to know for sure whether your matter is timely is to pick up the phone and call.
Filing a notice of claim is an absolute requirement to put the municipal entity on notice that something was done wrong. This allows them the opportunity to do a preliminary investigation. But in other jurisdictions, since you would not have been able to diagnose the cancer yourself, your time to sue would not begin until you discovered the misdiagnosis (or reasonably should have).
The bill, known as “Lavern’s Law,” was inspired by Lavern Wilkerson, who died this year of a curable lung cancer that doctors disclose for two years. Doctors at Kings County Hospital never told the 41-year-old Brooklyn mom that a 2010 chest X-ray showed the beginnings of lung cancer, which could have been cured. But incredibly, she was unable to even file a claim because once she discovered she had the cancer, the statute of limitations had already run. The bill was introduced by City Councilman James Vacca of the Bronx.
In an opinion piece for the Daily News, the president-elect of the New York State Trial Lawyers Association Robert Danzi said “This unjust law means tragic cases like Lavern Wilkinson’s are all too common. Treatment for a curable disease is forgone. When symptoms do appear, the disease may be so advanced that treatment is futile and the disease is fatal. The law, however, says these victims and their families have no legal rights and no access to justice. As a New York Supreme Court judge once wrote, New York's law is “unjust, illogical, and cruel.”
New York’s short turnaround for filing medical malpractice claims makes it critical that if you even suspect you are the victim of medical malpractice that you seek the advice of an experienced attorney immediately.