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  • The Statute of Limitations for Medical Malpractice Cases in New York State

I receive more questions about medical malpractice cases than any other type of case. Medical malpractice cases can be very emotional and confusing. Sometimes it is hard to differentiate between a poor outcome and medical malpractice. When a person has questions, he or she should consult a New York medical malpractice attorney for guidance.

What is New York’s Statute of Limitations for Medical Malpractice?

Potential clients often ask how long after medical treatment they can timely file a medical malpractice case. According to New York State Law, a person must file a medical malpractice lawsuit no later than two and a half years (30 months) from the act or omission named in the complaint or from the end of the continuous treatment during which the act or omission took place. There are cases with different timeframes. For example, claims against municipal hospitals or clinics face much shorter filing dates.

Examples of Medical Malpractice Cases

Let’s look at some examples. I had a client who sought treatment for obesity and his physician prescribed a short-term weight loss pill. That pill had potential damaging side effects that required careful monitoring of the patient’s condition and limited the duration a patient should have taken the medicine to no more than three months. In this case, the physician prescribed the drug for more than two years and failed to monitor the patient’s vital signs. Eventually, the patient developed respiratory failure and wound up in the hospital near death.  We conducted a thorough investigation and determined that the physician committed malpractice. The initial malpractice began when the physician prescribed the diet drug for more than three months and failed to monitor the patient’s vital signs. However, the patient received continuous care from that physician for over two more years so the “clock” on the statute of limitations did not begin until after the continuous treatment ended.

Here is case that falls outside the statute of limitations. A client goes to a doctor complaining about an odd discoloration on his back. The doctor dismisses the patient’s concern as needless worrying. Three years later, the patient sees another doctor who looks at this growing discoloration and determines that it is a melanoma that has spread and now threatens the patient’s life. The second physician remarks that had the first doctor properly diagnosed the patient’s condition, the patient most likely would have avoided extensive surgery and the risk of death. The patient wants to sue the first doctor but cannot because that visit occurred more than two and a half years ago and the patient had not seen that doctor since.  Unlike many other states, New York does not have a toll on the statute of limitations when the patient has no reason to know that malpractice has been committed.

Here is another example.  A patient enters a nursing home in July of 2006 and the treating physician issues orders to accompany the patient to the bathroom or anytime she gets out of bed. During the first week, the patient requests assistance to go the bathroom, yet no one comes to assist her. She eventually gets up on her own, falls and breaks her hip. The nursing home transfers her to a hospital for treatment of the broken hip and the patient returns to the nursing home from the hospital. In January 2010, the patient’s daughter learns the circumstances of how her mother broke her hip and transfers the patient to another nursing home. The daughter wants her mother to sue but is worried since the incident took place nearly three and a half years earlier. Because the patient received continuous care from the nursing home, the clock on the statute of limitations did not start until January 2010 when the patient transferred to a new facility.

The Continuous Care Provision Only Applies to Medical Malpractice Cases

The continuous care protection only applies in medical malpractice cases. Consider a variation on the previous example. Suppose the patient was not under medical orders to receive an escort to the bathroom. The patient gets up in the middle of the night to go the bathroom and slips and falls on a puddle that the maintenance staff failed to clean. She breaks her hip. That injury would result from the negligence of the nursing home and not medical malpractice. The statute of limitations for negligence cases is three years so it would expire in July 2009. If the woman did not file a claim until January 2010, the case would be dismissed for falling outside the statute of limitations.

When in Doubt, Seek the Advice of a New York Medical Malpractice Attorney

As you can see, New York’s medical malpractice laws have many subtleties that can dramatically affect the ability to bring a medical malpractice lawsuit. If you have questions, you should consult an experienced New York Medical Malpractice attorney. That attorney can assist you in determining if your case involves medical malpractice and falls within the statute of limitations. If you want more information on medical malpractice law in New York, you can click here to visit my web site.

This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.

I hope you found this information helpful. Please call or email me if you have comments, questions or would like assistance with a medical malpractice case.

Carol L. Schlitt
New York Medical Malpractice Attorney


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