Medical Malpractice

What needs to be shown:

  1. The health care provided owed a duty to the patient.
  2. The health care provider breached that duty.
  3. The patient suffered an injury.
  4. That injury was a proximate cause of the health care provider's breach of duty.

Timeline (Statute of Limitations)

A lawsuit must be commenced within two and a half years (two years and six months) of the alleged malpractice or within two years and six months of the last treatment (if that treatment was continuous and gave rise to the alleged injury).

Some exceptions:

  • Discovery Rule, according to NY State
    • If there is a foreign object left behind in a patient's body, the patient has one year to file a claim from the earlier of either the date it was found, or the date of discovery of facts that could reasonably have led to the finding of the object.
  • Minor Children
    • The statute of limitations does not begin for minors until they hit eighteen years old but it never extends past ten years after the malpractice occured.
  • Leaving the state
    • If the defendant leaves the state after committing malpractice, the statute of limitations may be extended.
  • Capacity
    • If the victim is mentally ill or disabled, the statute of limitations may be extended.