In this article, we'll spotlight a few key New York laws that could come into play in a medical malpractice lawsuit, starting with the time limits for filing such a case in New York's civil court system.
Time Limits for Medical Malpractice Lawsuits In New York
All states have very specific deadlines for filing medical malpractice lawsuits, called statutes of limitations, which gives victims of medical malpractice a certain number of years after the malpractice occurred within which to file a lawsuit.
The standard deadline in New York is slightly different from the usual deadline. In New York, a lawsuit for medical malpractice must be commenced within two years and six months of the alleged malpractice, or within two years and six months of the last treatment when you have had continuous treatment for the same illness, injury or condition that gave rise to the alleged malpractice.
If you do not file a medical malpractice lawsuit within this time period, you lose your right to sue, unless you fall within one of the exceptions we'll discuss in the next sections.
The Discovery Rule
The discovery rule is an exception to the standard deadline in situations where the victim could not reasonably have learned that he/she even had a medical malpractice case. In New York, the discovery rule is more limited than it is in other states. The rule only applies to situations where a foreign object was left in the patient’s body. In New York, when the malpractice lawsuit is based upon the discovery of a foreign object in the patient’s body, the malpractice lawsuit may be filed within one year of the date of discovery of the foreign object or within one years of the date of discovery of facts that would reasonably lead to the discovery of the foreign object, whichever is earlier.
Statute Of Limitations for Minor Children
In New York, the statute of limitations for minor children in medical malpractice cases does not begin running until the child’s eighteenth birthday, with one exception. Regardless of the child’s age when the malpractice occurred, the statute of limitations cannot be extended more than ten years after the alleged malpractice occurred or after a foreign object in the patient’s body was discovered or reasonably should have been discovered.
In New York, the statute of limitations may be extended if the defendant left the state after committing the malpractice, or if the victim of malpractice was mentally ill or mentally disabled.
The New York statute of limitations for medical malpractice cases can be found at New York CPLR sections 208 and 214-a.
No Limits on Medical Malpractice Damages in New York
Some states have caps or limits in the amount of the damages that can be awarded to a victim of medical malpractice. In New York, there is no such cap on the books.
Shared Fault Rules in Medical Malpractice Lawsuits in New York
In New York, if you go to trial and are found to be partially liable for your injuries, that finding will reduce your damages award.
That's because New York follows a “pure comparative negligence” rule. So, if you are found to be in part negligent with respect to your injury, illness, or medical condition, your award of damages is diminished in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000.
In New York, the plaintiff’s lawyer in a medical malpractice lawsuit must file a written certificate of merit within 90 days of filing the lawsuit. The certificate must state one of two options: 1) that the lawyer has reviewed the facts of the case and has consulted with at least one licensed physician, and that the lawyer has concluded on the basis of the consultation that there is a reasonable basis for filing a medical malpractice lawsuit, or 2) that the lawyer was unable to consult with a physician because the lawyer made three separate attempts with three separate physicians to obtain a consultation and none of the physicians would agree to a consultation. This law can be found at New York CPLR section 3012-a.
New York law also regulates legal fees in medical malpractice cases. Learn more: Limits on Attorney Fees in New York Medical Malpractice Cases.