Medical Malpractice and Continuous Treatment
July 14, 2020
The Statute of Limitations is the time within which you have to file a lawsuit. New York Civil Practice Law Rules section 214-a specifically addresses the statute of limitations for medical, dental or podiatric malpractice cases in New York.
In general, an action for medical, dental, or podiatric malpractice must be started within thirty (30) months (2 years 6 months) from the action or occurrence that you are complaining was negligent OR within two years six months (30 months) from the date of last treatment if there has been continuous treatment for the same condition and by the same medical provider. It will not be considered to be continuous treatment if you were seeing the same medical provider (1) for routine checkups or (2) for conditions other than the condition for which you sought treatment that led to the claimed negligence. Further, it will not be considered continuous treatment, for the purpose of tolling the statute of limitations, if you seek treatment from a different health care provider even if it is for the same condition for which you claim you received negligent treatment. It will only be considered continuous treatment if you continue to see the same provider for the same condition that resulted in negligent treatment and caused you to suffer an injury. The reason behind this limited exception to the statute of limitations is because it is believed that the patient should not be required to interrupt corrective medical treatment and disrupt the physician-patient relationship with the physician who may be in the best position to treat the patient in order to ensure the timeliness of a medical malpractice action. The injured party should not have to make a choice between starting a legal action or receiving timely and necessary medical.
New York Civil Practice Law Rules section 214-a (emphasis added): An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that: (a) where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and (b) where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition. For the purpose of this section the term "continuous treatment" shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient's condition. For the purpose of this section the term "foreign object" shall not include a chemical compound, fixation device, or prosthetic aid or device.
Navigating your way around the Statute of Limitations is complex. The above is a very general discussion of the subject. We suggest that you consult with an attorney who is experienced in the area of law you believe applies to you. Please feel free to contact The Gordon Law Firm of New York for a no-cost, no-obligation consultation.