Go to navigation Go to content

Does the Time to File Your Medical Malpractice Lawsuit in NY Begin When You First Learn of Your Injuries?

The answer would be a firm "NO."

That is NOT the time to file your lawsuit.
That might be the first time you realize you have injuries.
It might be the first time you connect the treatment you received to those injuries.

But that time may be too late.
I'm talking about the statute of limitations here.
No, it's not the 'statue of limitations' but rather 'statute'.

Statute is a rule, law or regulation.
I'm talking about the time limit in which you have to file suit against your doctor or careless hospital staff.
In New York, there are strict time limits for every type of case.

Let's take a look at a cancer case for a moment...

Your doctor finally diagnoses your condition.
You've been told you have cancer.
Stage IV.

That means it has spread throughout your body.
The doctors say your cancer has metastacized.
You're devastated.

Thinking back, you believe you complained to your doctor a few years ago about similar problems.
You remember your doctor brushed off your problems and made you feel like it was all in your head.
He made you feel silly for thinking it was serious.

But now you're devastated to learn you have cancer throughout your body.
Surgery is not an option now.
You need chemotherapy.

Lots of it.
Radiation therapy won't work at this point.
The doctors give you one year to live.

The more you think about it, the more you think your doctor failed to do certain tests that would have revealed cancer.
One of your doctors said that if this had been diagnosed three years ago when you had these complaints, the cancer would likely have been either stage I or stage II and treatable.

Now it's too late.
The treatment won't help much.
The chemo won't do much either.

Now you want to sue your doctor.
For medical malpractice.
For being careless.

For violating the basic standards of medical care.
You call an attorney.
He asks you a series of questions...

"When did the wrongdoing happen?" he asks.
"I''m not sure. I just found out I have cancer last week," you reply.
"Ok, when was the last time you saw your doctor?" he asks.

"Three years ago," you answer.
"Well, you have a problem," he tells you.
"What do you mean? I only learned of my injuries now. My matter must be timely, right?" you ask.

"Actually no. That's not right," he responds.
"In NY you have only 2 1/2 years from the date of the wrongdoing within which to file a lawsuit against a private doctor or private hospital," he tells you.
"There are some exceptions," he continues.

"If you continued to see your doctor for the same condition and same complaint that you originally saw him for, then your time to file a lawsuit might be extended and your time to start a case might not start to run until you last saw him. BUT, in order to know if that's true, every single page of every single medical record would have to be thoroughly researched and examined to let you know for sure if your time to file is extended," the lawyer tells you.

There is an important exception to this.

Let's change the fact pattern now.
Instead of a failure to diagnose cancer case, let's say your case involves a surgeon leaving a surgical instrument inside of you.
You wind up having back pain three years after your surgery.

A trip to your primary care doctor reveals on x-ray that some type of surgical instrument is sitting inside of you.
A trip to a surgeon suggests that this instrument should NEVER have been left inside of you.
We lawyers call this a 'foreign object' case.

In that case, the time in which you have to sue your doctor starts from when you first learn of this object being inside of you.
OR when you REASONABLY should have known it was inside of you.
In that instance, you have only ONE year from the date of discovering that item within which to sue.

However, that ONLY applies if the object that was left inside of you was NEVER intended to be left inside of you.
If the foreign object was designed and intended to remain inside of you, then the 'date of discovery' rule does not apply.

To learn whether your matter is timely, I recommend picking up the phone and calling me at 516-487-8207.

To learn more about the statute of limitations in medical malpractie cases, I invite you to watch the video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer