How long do I have to file a medical malpractice claim in New York?
Lavern Wilkinson of Brooklyn was a single mother of two and a church librarian. Wilkinson went to the Kings County Hospital with chest pain in 2010. A radiologist noticed a suspicious mass on the x-ray, but did not inform Wilkinson. Two years later, she returned to the hospital with worsening complaints of pain, and it was discovered she had lung cancer that had now spread to both lungs, her liver, brain, and spine. She passed away due to her ailment, which would have been treatable if correctly diagnosed back in 2010. For Wilkinson’s family members, there would be no justice because the statute of limitations for bringing a medical malpractice claim had passed.
New York’s Statute of Limitations for Medical Malpractice Cases
Under New York law, patients injured due to medical malpractice have 30 months from the date the patient was injured to file a claim. The statute of limitations importantly starts to toll from the date of the malpractice, rather than the day on which the patient learned of the malpractice. The law places New York in the minority of states that do not base the statute of limitations on the date of discovery of the wrong action.
Exceptions to this rule do exist. For patients under continuous care, the “clock” will not start running until conclusion of the treatment. When a foreign object is left inside a patient, the patient has just one year from the date of discovery or date of discovery of facts that should have led knowledge of the problem. Lastly, and critically important to Lavern Wilkinson, patients treated by city hospitals have just 15 months from the date of the malpractice to file a medical malpractice claim.
Lavern’s Law proposes extending the statute of limitations for medical malpractice cases to 30 months from the time the patient learned of the malpractice. This extension could make a critical difference for many patients, particularly those who suffer from undiagnosed cancers. Despite wide support, the bill has yet to come up for a vote. Supporters of the bill must take action to fight for its passage and the rights of medical malpractice victims across the state.