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Medical Malpractice Statute of Limitations

July 9, 2020


The Statute of Limitations is the time within which you have to file a lawsuit. The Statute of Limitations (SOL) is a strict time and if you do not file your lawsuit within that timeframe, it will be too late. The SOL in New York for medical malpractice cases is specific for this type of case. The specific SOL for medical malpractice cases in New York can be found at New York Civil Practice Law and Rules section 214-a. Very generally, the SOL for a medical, dental, or podiatric malpractice case in New York State (the time within which it must be commenced) is two years and six months (30 months) from the date of occurrence. However, there are some exceptions that may shorten or lengthen the SOL in specific cases. For that reason, it is important that you consult with an attorney as soon as possible if you believe that you have been the victim of medical malpractice.

More specifically, a medical, dental, or podiatric malpractice case must be started within 30 months of the claimed negligence (the act, omission or failure) or of the last treatment where there has been continuous treatment for the same condition or injury which gave rise to the act, omission or failure and by the same provider (see Blog on “Continuous Treatment”). There are many exceptions to this general rule, a few of which will be discussed here.

There are very specific and short time limitations for commencing a lawsuit against a municipality, City, State, or Federal government hospital or clinic.

Many people who contact our office believe that New York has a discovery rule, that the statute of limitations does not begin to run until you discover that you have been the victim of a negligent action. While there are a couple of specific exceptions, there is a very limited “discovery rule” for medical malpractice cases in New York. When applicable, the “discovery rule” can toll (stop) the statute of limitations for a limited period of time beyond the two years six months after the occurrence. These exceptions will be covered in a separate discussion (see Blogs “Discovery Rule”; “Foreign Objects”, “Lavern's Law”).

The statute of limitations may also be extended in specific cases of continuous treatment. Under the “Continuous Treatment Doctrine” the statute of limitations may not start to run if, following the negligent act, you continue to treat with the same health care provider for the same condition which resulted in the claimed injury or for treatment for the injury that you are claiming. This policy allows the patient to continue receiving treatment without losing the right to sue at 30 months. The negligent health care provider may be in the best position to rectify the damage s/he has caused.

The 30-month statute of limitations does not apply to infants, defined in New York as anyone who has not reached his/her 18th birthday. The statute of limitations in the case of an infant is 10 years after the cause of action accrues (from the occurrence) or 30 months from the 18th birthday. For example, if the negligence occurs to the infant at age 5, she will have 10 years from the occurrence to file a lawsuit. However, if the negligence occurs at age 17, s/he will have 30 months from her 18th birthday. If, however, the parent(s) also have a cause of action for the same occurrence, that statute of limitation (for the parent) remains 30 months from the occurrence. Please feel free to contact The Gordon Law Firm of New York for a more detailed explanation or to discuss your specific case.