NYS Medical Malpractice Law

Following is the law as it applies to medical malpractice cases in the State of New York as of April 6, 2020. This is known as CPLR-214-a.

§ 214-a. Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions. An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that: (a) where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and (b) where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition. For the purpose of this section the term “continuous treatment” shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition. For the purpose of this section the term “foreign object” shall not include a chemical compound, fixation device or prosthetic aid or device.

The courts have interpreted this to mean that the patient has 2.5 years to file a medical malpractice lawsuit calculated from the date of their last appointment or possibly another scheduled appointment with the doctor that involved treatment for the specified condition. (Note: Minors are subject to a different statute of limitations).

This is an extremely poorly written law that inures to the benefit of the doctor. The statute of limitations for medical malpractice cases in New York State was reduced from 3 years to 2.5 years in 1975. For most all other professions such as attorneys and
accountants the statute of limitations is 3 years so I can only assume that the doctors did an intense amount of lobbying in order to have that reduced. Furthermore for other professions the statute of limitations is generally considered to start from the last time service was rendered on the matter. That is not the case with doctors as they can continue to consult with the patient over the telephone or with the patient’s other doctors during the 2.5 years statutory period but unless the patient had an office appointment those consultations do not count. The problem with this law is that the patient may not discover the malpractice until well after the 2.5 year time limit. As of this writing New York is one of only 5 states that do not have a general discovery rule in regard to medical malpractice cases,

As you can see there are exceptions to CPLR-214-a where the statute of limitations can be extended such as in the case where a foreign object was left in the patient after surgery or a cancer was misdiagnosed. The cancer clause is a recent addition to the law.

CPLR-214-a only applies to ordinary negligence where the doctor is unaware of the malpractice at the time it occurs. It does not include situations where the doctor is aware that he has committed medical malpractice and then tries to cover it up.

When a doctor is aware of his own medical malpractice he has a fiduciary obligation to inform the patient of the malpractice so the patient may correct the medical problem and commence a timely lawsuit. If the doctor fails to inform the patient of the malpractice and then fraudulently conceals it in order to run the clock out on the 2.5 year statue of limitations, the statute of limitations can be tolled for 6 years past the date of discover of the malpractice. In the State of New York this legal doctrine is known as equitable estoppel and critical case law was established in 1978 by the NYS Court of Appeals in the landmark decision of Simcuski v. Saeli.