As a general rule, a medical malpractice lawsuit in the State of New York must be filed within two years and six months from the alleged error or from the last treatment, if the treatment was continuous. Separate rules apply, among others, to foreign objects left in the body and missed cancer diagnoses.
Many patients from the Polish-American community often do not connect their ailments with a possible medical error for a long time—they wait for further tests, believe that “it will go away on its own,” or do not want to damage their relationship with their primary care doctor. Meanwhile, New York law sets a clear deadline for filing a lawsuit, and the starting point does not always fall on the day the patient realized something went wrong.
Two and a half years—but starting when?
Pursuant to CPLR §214-a, the time limit is two years and six months. It runs from the alleged act or omission or from the last treatment, if the patient was in continuous treatment for the same disease, injury, or condition. This latter stipulation has practical significance: in the case of long-term treatment for the same ailment, the deadline may begin later.
However, continuous treatment does not mean every subsequent visit. The statute excludes examinations that a patient requests solely to find out their health status. A visit for a completely different ailment also does not extend the deadline. Therefore, an accurate chronology is crucial: the dates of visits, procedures, and what each of them concerned.
Foreign objects and missed cancer
When a foreign object is left in the body, a lawsuit may be filed within one year of its discovery or from the disclosure of facts that reasonably should have led to its discovery—whichever occurs first. However, the statute does not treat chemical substances, bone fixation elements, or prostheses as foreign objects.
A separate rule applies to the failure to diagnose cancer or a malignant tumor. In such cases, the two-and-a-half-year period may run from the time the patient learned or should have learned about the negligence and its consequences. However, a limit applies: as a general rule, no later than seven years from the negligence itself. When the defendant is a public entity subject to municipal corporation regulations—such as a facility run by a county—a Notice of Claim generally must be filed within 90 days, and the lawsuit must be filed within one year and 90 days (General Municipal Law §50-e and §50-i).
What this means for Polish-American patients
An unfavorable treatment outcome alone does not constitute medical malpractice. The Heller Law Firm, PC explains on its website that in New York, it must be proven that the doctor, nurse, or hospital failed to meet the proper standard of care and that this—rather than the underlying condition—caused the injury. An attorney attaches a certificate to the lawsuit stating that they have consulted the case with at least one physician and see reasonable grounds to initiate it; this is required by CPLR §3012-a.
Medical records serve as the basis for evaluation, and patients have a right to them. Public Health Law §18 provides that upon written request, the facility must make records available for inspection within 10 days, the fee for paper copies cannot exceed 75 cents per page, and a lack of funds cannot be the sole reason for refusal. When receiving treatment in multiple locations—for example, at a clinic in Queens and a hospital on Long Island—it is worth gathering complete medical files from each of them, rather than just discharge summaries.
Free consultation in Polish
The law firm The Heller Law Firm, PC, founded by Norman H. Heller, Esq., analyzes patients’ cases to determine whether there has been a possible departure from accepted medical practice. The scope of this practice is described on the law firm’s page on medical malpractice.
The initial consultation is free, and the conversation can take place in Polish—in Ridgewood or Lake Success. Phone: 516-441-5656.
This article is for informational purposes only and does not constitute legal advice; reading it does not create an attorney-client relationship. The material constitutes attorney advertising. Prior results do not guarantee a similar outcome.
