STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE IN NEW YORK STATE: LOBBYING TO PROTECT PATIENTS' RIGHTS

Every state imposes a time limit within which a lawsuit must be started. This time limit is known as the Statute of Limitations. If a lawsuit is not started before the expiration of the Statute of Limitations, the plaintiff is forever barred from suing for any damages or injuries they incurred, regardless of whether or not they had a meritorious case.

The New York Daily News recently ran a series of articles regarding the New York Statute of Limitations for medical malpractice cases. In New York, a medical malpractice lawsuit must be started within 2 ½ years of the date of the malpractice, regardless of whether the patient is aware that he or she has been the victim of malpractice. In many cases, the time limit for bringing a medical malpractice lawsuit in New York will expire before the victim even knows they have been injured. The rule is draconian, patently unfair to victims of malpractice and serves only to protect the interests of negligent physicians and hospitals.

In most states, the time limit to start a medical malpractice lawsuit starts to run from the date on which the patient discovers that he or she has been injured as a result of malpractice. New York is one of only six states that does not have such a "date of discovery" rule; the other five states are Arkansas, Idaho, South Dakota, Minnesota and Maine, not exactly good company for New York to be in.

The punitive nature of New York's time limit is best seen by looking at specific examples of cases where the rule has a drastic and unfair effect. Take the case of a woman in New York who follows her doctor's advice and undergoes a screening mammogram. She is told that the test is normal and that she has nothing to be concerned about. Three years later, however, she is diagnosed with advanced breast cancer that has spread to other parts of her body. Puzzled as to how such advanced cancer could be present in a patient who had a normal screening mammogram, her physicians review the earlier films and discover that the test was misread and that signs of cancer were present three years earlier, at a time when treatment could have offered before the cancer had spread. Unfortunately for the patient, however, she has no legal rights or recourse against the negligent physician who misread her mammogram: the time limit to sue him has expired, before the patient even knew she had been a victim of malpractice and before she even knew that she had been injured.

Obviously, this law is unfair; it serves only to protect negligent doctors. Equally obvious is that it should be changed to protect the victims of malpractice. Unfortunately, the doctors' and insurance lobbies have blocked all attempts to bring New York in line with the vast majority of states which provide their citizens with a statute of limitations that allows them to have their day in court and does not artificially limit their legal rights.

Each year medical malpractice litigation partners of our firm participate in lobbying efforts, meeting with elected representatives in Albany, in an attempt to change New York's medical malpractice statute of limitations. This year, we are hoping that the tide has changed and that recent publicity about this draconian rule will finally result in its amendment. If you agree that this law needs to be changed, we urge you to call your state representatives in Albany and ask them to vote in favor of adopting a date of discovery rule for malpractice victims in New York.

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