Wednesday, February 7, 2007

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.

Labels: FAQ-Medical Malpractice, Medical Malpractice

posted by Eric Turkewitz
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Comments:

Even worse is the foreign object/fixation device problem. In my case, client did not find out he had a stent in his nose until 3 years after it was placed. Result: blown statute. Labarberra v. New York Eye and Ear [Ct. App]

# posted by  andrew lavoott bluestone : February 07, 2007 12:22 PM

 

firstly melanoma can metastasize without any evident primary lesion, i have had cases where patients developed metastatic melanoma without any skin lesions---in addition if the original biopsy was benign there is no further evaluation or treament required-- that is the purpose of the biopsy-- to guide treament decisions, yet you would have some clever professional witness testify to a bogus standard of care that has no factual basis-- i have no problem with extending the staute of limitationss but by the same token where is there protection from unscrupulous attorney's and paid "expert" whores

the medical tort and judiciary system in NY is already ridiculously weighted towards the plaintiff-- so don't talk about "fair"

drs

# posted by  Anonymous : February 28, 2007 10:30 PM

 

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