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New York has the following laws in place that impact medical malpractice claims and your right to pursue them.
Statute of Limitations for New York Medical Malpractice Claims
Under New York’s Civil Practice Law and Rules (§214-a), victims of medical malpractice have two and a half years to file a lawsuit, which typically begins on the date of the alleged negligence. The time limitation also applies to the date of a doctor’s failure to diagnose. In some cases, the statute of limitations will begin to run from the date of the last treatment if the patient is receiving continuous treatment for the same illness or condition. Claims filed after the statute of limitations has expired will be dismissed as untimely.
The Discovery Rule
The discovery rule is an exception to New York’s statute of limitations, but it is very limited compared to other states. There are only two types of cases that fall under the discovery rule, which are incidents of foreign objects being left in a patient’s body or a delayed cancer diagnosis.
Foreign Object
When a patient finds out that a foreign object has been left behind in their body following a surgery, they will have one year from the date of discovery to pursue a medical malpractice claim or from when the object should have been discovered.
Delayed Cancer Diagnosis
Also known as Lavern’s Law, which allows patients two and a half years to file a claim involving an alleged missed cancer diagnosis starting from the date of discovery. However, the misdiagnosis must have been discovered within seven years from the date of the failure to diagnose.
Statute of Limitations for Minor Children
The statute of limitations in cases in which a minor child has been injured due to malpractice is “tolled” or delayed until the child turns eighteen. Although, regardless of the child’s age at the time the medical malpractice occurred, the time limit cannot be extended more than ten years past the alleged incident.
Certificate of Merit in a New York Medical Malpractice Case
Individuals pursuing something like a White Plains medical malpractice claim are required by New York law to have their attorneys file a certificate of merit with the original complaint. A certificate of merit is a document certifying that the plaintiff’s (victim’s) attorney consulted with a medical expert who has arrived at the conclusion that the plaintiff’s claim has merit. The purpose of the Statute, New York Civil Practice Law and Rules Section 3012-a, is to deter and quickly end non-meritorious claims against health care providers. If a plaintiff fails to file a Certificate of Merit within the time frame required and has also failed to meet the criteria to be entitled to an extension of time for doing so, the case may be dismissed.
New York Shared Fault
New York courts operate under a “pure” comparative fault law (N.Y. C.P.L.R. § 1411), which means that each party involved in a medical malpractice lawsuit is assigned a percentage of fault that can reduce a plaintiff’s compensation. However, even if you are 99% to blame for your injury or illness, you can still recover compensation, but it will be reduced by your percentage of the blame. For example, if you are awarded $100,000 but found 20% at fault, you will receive 80% of your award or $80,000.