What Is The Medical Malpractice Statute Of Limitations In New York?

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Medical malpractice occurs when a doctor, nurse, surgeon, anesthesiologist, or other medical professional commits an error that has an adverse effect on the health of the patient. To qualify as medical malpractice, the actions must have deviated significantly from professionally accepted standards.

Malpractices claims can be notoriously difficult to prove, and the burden of proof lies with the patient filing a lawsuit against a medical professional.

In New York, the medical malpractice statute of limitations typically allows victims 2.5 years, or 30 months, from the time of the injury to file a medical malpractice claim, however, there are a number of exceptions to this timeframe.

If you have questions regarding how long do you have to file a malpractice suit, we invite you to contact our firm to discuss your claim with an experienced medical malpractice attorney.

The Discovery Rule

In some situations, it’s impossible for patients to know that a provider’s negligent actions injured them for quite some time. For example, a patient visits his or her regular doctor complaining of severe headaches. The doctor gives the patient prescription-strength pain relievers without ordering any diagnostic tests. More than two and a half years later, the patient learns that the severe headaches were an early indication of a brain tumor that has now gotten much worse. The original 30-month clock would not start ticking until the patient made this connection.

Exceptions to the Medical Malpractice Statute of Limitations In New York

As with most laws, several exceptions exist to the 30-month statute of limitations on medical malpractice cases in New York. For example, a patient whose surgeon left a foreign object such as a medical instrument inside of his or her body has just one year from the date of the surgery to file a claim. The law argues that is plenty of time to discover the object or it should have been enough time for those who did not discover it. Some other common exceptions to the New York medical malpractice statute of limitations include:

Continuous Treatment Doctrine

Under the Continuous Treatment Doctrine, the clock on the 30 months doesn’t start ticking while a patient receives ongoing treatment for an illness or injury. One justification for this exception is the recognition that filing a medical malpractice lawsuit while receiving treatment could have an adverse effect on the patient’s level of care. The clock begins to tick immediately once the patient has finished treatment with his or her provider.


The clock towards the 2.5-year statute of limitations stops if the patient meets the legal definition of insanity. It starts again when his or her psychiatric disability ends. Recognizing that this condition is permanent in some people, state law caps the waiting period at 10 years.

· Minor Children: New York law states that the statute of limitations clock in medical malpractice cases doesn’t apply to minor children. However, the countdown of the 30 months will start on the patient’s 18th birthday. It’s important to note that there is an exception to this exception and that is that the timespan cannot exceed 10 years. For example, the parents of a newborn harmed at birth due to a serious error by a delivery nurse would only have until that child turned 10 to file suit. The 10-year limit applies to foreign objects left in the body as well while adults have only one year in the same situation.

New York State Agencies

City and county governments in New York own many of its hospitals. Some also exist due to a specially-formed corporation by the state government. New York, unlike some of the other states, has waived its right of immunity in cases of medical malpractice or wrongful death. That means people receiving care at a hospital owned by a New York state agency have the right to sue for negligent treatment. The difference is that the patient must file a lawsuit or a notice of claim against the state government within 90 days of the date of the injury. He or she then has 15 months to follow through with filing a medical malpractice or wrongful death lawsuit. The court may extend this timeframe only in limited circumstances.

United States Government

The United States government owns and operates veterans’ hospitals, military hospitals, and other hospitals, clinics, and laboratories. Under the Federal Tort Claims Act (FTCA), the injured patient must handle his or her claim in a specific way. This includes notifying the federal agency in writing of the intent to file a medical malpractice or wrongful death lawsuit within two years of the date of the malpractice or the discovery of its effects on the patient. The injured patient must then file the lawsuit within six months after the federal agency that received and denied it mails the patient a denial of the claim.

Wrongful Death

The family of a person who they believed died due to medical error has two options when filing a wrongful death lawsuit. The first is to file a claim against the medical providers within two years from the date of the death. The second option is to file a claim as a representative for the patient’s estate to recover costs associated with his or her care prior to death. Family members have 30 months to exercise this option. It’s potentially possible to extend this timeframe if the patient met one of the above exceptions while still alive. It’s also important to understand that the statute of limitations to file a wrongful death claim may expire prior to the lawsuit for damages that occurred prior to death. In cases when the patient lived six months or longer after the act of malpractice, the claim for pre-death damages may expire before the statute of limitations on the wrongful death lawsuit.

Contact Us for a Free Case Evaluation

The personal injury law firm of Raphaelson Levine has successfully represented many New York residents with their medical malpractice or wrongful death claims. If you have questions regarding how long do you have to file a medical malpractice suit in new york, we invite you to contact our office at 212-268-3222 to request a free and confidential review.

By: Howard Raphaelson

Howard A. Raphaelson founded Raphaelson & Levine Law Firm, P.C. in 1992 after graduating from the Benjamin N. Cardozo School of Law. Established in New York, NY, his personal injury law firm has obtained numerous million-dollar verdicts. With over twenty-five years of experience as a personal injury attorney, he has earned a trusted reputation from his peers, judges, and top leaders, including recognition among the top 5% injury attorneys as a “Super Lawyer” (Thomson Reuters) and “New York’s Best Lawyers” (New York Magazine). View all posts by Howard Raphaelson


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