Is It Too Late To Sue My Doctor For Medical Malpractice?

When medical professionals act negligently in caring for a patient, whether they are doctors, nurses, podiatrists or dentists, the kind of claim one brings against them is one for medical malpractice.  Medical malpractice is a special kind of negligence action that only applies to medical professionals who make medical mistakes.  In this post, we will discuss the special statute of limitations that applies to medical malpractice actions and the special exceptions that may apply.

A statute of limitations is a law that states how long you have to bring a lawsuit after something happens.  For instance, in New York, you generally have 3 years from the date of a car accident or slip and fall to bring a lawsuit for injuries you may have suffered.  If you do not bring a lawsuit within that time frame, barring certain exceptions, you cannot sue, even if you have a winning case.  This is why being aware of the applicable statute of limitations is so important in cases involving injuries from accidents.

In New York, you only have 2 ½ years to bring a medical malpractice lawsuit.  When does the 2 ½ year countdown begin?  In most medical malpractice suits, the statute begins to run from the date of the malpractice, NOT the date you discover that something went wrong.  So, for instance, let’s say you went to the emergency room complaining of stomach pain.  The doctor diagnosed you with a stomach flu and sends you on your way.  Two weeks later you end up back in the emergency room with a burst appendix that the doctor missed on your first visit.  This might be a case of medical malpractice.  If it is, you must bring a lawsuit within two and a half years of your first visit to the ER, because that was the day the mistake was made.  The statute of limitations generally does not hinge on when you discovered the malpractice, but rather when the malpractice itself actually happened.

There are several exceptions to this standard statute of limitations that may allow you to “toll” (meaning delay) the date from which the statute of limitations runs.  The first exception is called the “Continuous Treatment Doctrine.”  This doctrine applies when you treat with the same doctor for the same condition the malpractice is related to.

So let’s say you broke your leg and started treatment with an orthopedist named Dr. Bones in January 2010.  Dr. Bones performed surgery on your broken leg in March 2010.  During that surgery, Dr. Bones accidentally severed one of your tendons, resulting in a permanent limp.  Your treatment for your broken leg then continues with Dr. Bones through follow-up appointments and repeated x-rays until June 2012.  In October 2012 you obtained a second opinion from another doctor who discovered Dr. Bones’ mistake.  Under the standard 2 ½ year statute of limitations, your claim against Dr. Bones would have run in September 2012, 2 ½ years after the surgery in March 2010.  That means that you would be barred from bringing a lawsuit because you waited too long. However, using the Continuous Treatment Doctrine, you could start counting the statute of limitations from June 2012 when he stopped treating you for the broken leg.  In that scenario your statute of limitations wouldn’t expire until December 2013,  giving you substantially more time to bring a lawsuit.

Another exception to the standard statute of limitations is called the “Foreign Object Rule.”   The foreign object rule exists to help people who have things, like sponges, scalpels, scissors or clamps, accidentally left in them during surgery.  The Foreign Object rule gives you a choice of when to begin counting the statute of limitations.  You can use the standard 2 ½ years from the date of the surgery rule, or, if that time-frame is too short, you can add one extra year from the date you discovered the object or when you reasonably should have discovered the object.  So, for instance, say you had your appendix removed and a doctor left a clamp inside you.  You suffer extreme abdominal pain and repeated fevers for almost 3 years after the surgery.   Finally, you find a different doctor who does a CT scan on your stomach and discovers the clamp.  At 3 years after surgery, you are well past the standard statute of limitations, but, applying the Foreign Object Rule, you now have one year from the day you discovered the clamp to bring a lawsuit.

While other exceptions exist to toll a statute of limitations, such as exceptions for minors, in general, you want to try and bring a lawsuit as soon as you suspect malpractice may have occurred.  It is always easier to bring a lawsuit within the standard statute of limitations than it is to try and toll it using one of these rules.  If you believe you may have been injured due to medical malpractice, please contact one of our attorneys today to find out if you still have time to sue.

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