medical malpractice
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By Joseph Dell
Managing Partner

Recovering from a medical procedure necessitated by an injury or an illness can be a long and costly process. When you are the victim of medical malpractice from a trusted healthcare provider, this only adds insult and injury to the entire situation. You put your faith in a physician or other medical practitioner who, through mistakes or negligence, has only made your injury or illness worse. Complicating matters is the effect of New York’s statute of limitations on medical malpractice cases, which limits the amount of time you have to bring your lawsuit. 

However, there is some hope that comes in the form of the discovery rule, which extends the statute of limitations based on the discovery process that led to you learning that your injury was caused by medical malpractice. The following will explore the discovery rule and whether it may make it possible for you to bring a medical malpractice claim.

New York’s Statute of Limitations for Medical Malpractice Claims

New York has one of the most restrictive statute of limitations in the country. If you were injured by the actions or negligence of a medical practitioner or at a private or other non-government hospital or healthcare facility, you have only 30 months from the date of injury to file your medical malpractice claim. This includes hospitals that are operated by religious denominations. This means that you have only a very short two-and-a-half-year window in which to sue.

The situation is even worse if you are like many who receive treatment at a municipal hospital or another government-owned healthcare facility. If this is your situation, you have an even shorter time period with a two-stage process. First, you or your attorney has only 90 days from the date of injury to file a Notice of Claim with the defending facility and the government entity responsible for handling legal matters for this agency. For example, if you are in one of the five boroughs of New York City, you have to file a Notice of Claim with the Corporation Counsel Office. If you do this, you still must file your case within 12 months of your injury.

What is the Discovery Rule?

Many medical malpractice cases involve injuries that are not immediately discovered. Sure, if you went to the hospital to have a stent put into your heart and the physician nicked a blood vessel causing internal bleeding, then you will probably be aware of the injury immediately. But what happens if, for example, you get a knee replacement that fails after only three years? Under the operation of the statute of limitations, you would not be able to sue the physician who performed the procedure or the hospital where it was conducted. 

This is why the New York State legislature passed the new discovery rule for medical malpractice cases, effective January 31, 2018. This was nicknamed Laverne’s Law for a woman who died of lung cancer but was unable to bring a medical malpractice claim against the doctor who failed to diagnose her three years earlier when he missed seeing a suspicious mass on her right lung that was clearly there on an x-ray. 

The discovery rule now requires that the statute of limitations does not begin to run until a medical malpractice injury is actually discovered. So, in Laverne’s situation, had the discovery rule been in effect, she would have been able to sue the physician who misdiagnosed her since she had 30 months from when she was diagnosed with lung cancer, not 30 months from the date of the misdiagnosis three years earlier. In the situation with municipal hospitals and government healthcare facilities, you still have to go through the two-stage process, but the timing doesn’t start until the medical malpractice is discovered. 

In any event, you still have a total of seven years from the date of the malpractice treatment to bring a claim. So, if you discover the medical malpractice seven years or more after the treatment date, you will be unable to bring a claim.

Call Us If You Are Injured as a Result of Medical Malpractice

At Dell & Dean, PLLC, we have a team of experienced attorneys ready to help you with your medical malpractice claim. If you or a loved one has been injured by a physician, dentist, healthcare professional, hospital, or other healthcare facility, call us today so we can help you get the compensation you deserve.

About the Author
Joseph G. Dell, the firm’s Managing Partner, is regarded as one of New York State’s top trial lawyers and a zealous advocate of those injured through the negligence of others. Having founded the firm in 1994 with the singular goal of leveling the playing field for those injured, Mr. Dell has worked tirelessly for his clients since its inception. In addition to meeting with clients on a daily basis and trying cases, Mr. Dell is a frequent lecturer at Law School and Bar Associations on cases of significant importance in the fields of negligence and medical malpractice. If you have any questions regarding this article, you can contact Mr. Dell here.