FAQ: Statute of Limitations in Medical Malpractice Cases

New York’s statute of limitations is just 2 1/2 years in medical malpractice cases, which is brutally short when it comes to the “failure to diagnose” cancer cases. Often the malpractice is not even known (because the diagnosis was missed) until after the statute of limitations has passed.

A few days ago, the Appellate Division decided Trimper v Jones, and this demonstrates how medical practitioners get immunity from suits regarding a failure to promptly diagnose a cancer:

[D]ecedent sought treatment from Dr. Jones for a flare-up of eczema and that he subsequently showed her a mole on his left shoulder that concerned him because it seemed to be growing. Dr. Jones excised the mole and had it biopsied in October 1999. Dr. Jones advised decedent on October 29, 1999, through plaintiff, that the lesion was a minor nevus and was not malignant. Decedent next saw Dr. Jones in January 2001, when he experienced another flare-up of eczema, and he again saw Dr. Jones in March 2002 for a flare-up of eczema. At that time, he pointed out a lump under his left arm, and Dr. Jones referred him to his internist. Upon removal of the lump by a surgeon, it was determined that decedent had metastatic melanoma. Decedent did not see Dr. Jones again, after his appointment in March 2002. Plaintiff commenced this action in February 2003, and defendants thus met their burden of establishing that the statute of limitations, which began to run in October 1999, had expired.

While New York does allow for some exceptions to the time limitations rule, they are not applicable in this type of matter. One could conceivable extend the statutory period under the “continuous treatment doctrine” if treatment was continuing for the same condition that gave rise to the lawsuit. But if the diagnosis was missed there is unlikely to be any treatment for that condition.

New York, unlike some other states, does not have the time limitation starting to run from the date of discovery of the malpractice. The effect is to give immunity to medical care providers who miss a diagnosis, tell a patient all is well, and such error is not discovered until the 2 1/2 year period has elapsed.

In a prior post I had discussed the need for speed sometimes in contacting an attorney. Sadly, it is sometimes impossible.

For other FAQs on New York medical malpractice, click this link.

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5 Responses Leave a comment

  • Lind a Hall 2010.7.21 at 15:53 | Quote

    in July 2002 I was diagnosedwith a brain stem tumor which was missed on mri taken in Feb 2002 at another hospital. Can i sue first hospitalwho missedit?

  • Eric Turkewitz 2010.7.21 at 15:57 | Quote

    The only way to know is to contact an attorney in your area. That lawyer can get at the relevant facts for your jurisdiction.

  • Revision 2010.7.24 at 20:18 | Quote

    I had a stomach staple surgery 10yrs ago I’ve had problems from day 1, only received two follow ups from my DR. I need a revision This month/last month I had an Endoscopy done they found the surgery didn’t look the way it’s supposed to had an upper G.I. done found out my DR didn’t give me the correct surgery he tweaked and gave me a different 1. He placed the band in a diff location w/o telling me 3 days after surgery I was given solid food. So many wrong things happened. I’m scheduled to repair his mistakes in 2 months I’ve been sick for ten yrs and is now out on disability from my job of 18yrs due to my weight gain and other health factors stemming from the same. Can I sue for him not giving me the surgery we agreed on and that’s written In my med records? which I have. My Dr has since been fired from that hospital and another hospital where worked simultaneously. @ that time (he was chief of surgery)he still has his private practice and is @ another local hospital doing the same. My Co-worker has/is suing him for his wife’s death in a weight loss surgery case. He’s bad news!

  • Eric Turkewitz 2010.7.27 at 13:51 | Quote

    I’m sure you can appreciate that I can’t give legal advice via blog comments.

  • Dean Crasno 2011.9.24 at 14:44 | Quote

    I went to Montefiore Hosp. in mid October 2007 for tingling in my fingers after dental surgery. After, I contracted a hospital-borne MRSA infection and I was in isolation. After, in the weeks before Christmas, I had a heart attack (no previous heart problems), a stroke, a second heart attack, a mitral valve replacement and a second stroke. It took until July ’09 to get back to myself. Can the “continuous treatment doctrine” help me sue because I take specific medications (hydro- and fludro- cortisone) because my adrenal glands were blown out from the MRSA.?

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