When it comes to medical malpractice, some states offer more protection than others. New York is one of the areas that have very patient friendly medical malpractice rules that you should know about. These laws will give you important legal rights if you have suffered from medical malpractice.
The Statute Of Limitations
Medical malpractice is one of the laws that comes with a statute of limitations, and this will vary depending on the state. The statute of limitations is the timeframe given to victims of medical malpractice cases
for them to file a lawsuit. In New York State this limit is 30 months after the medical malpractice was suffered.
In New York, there is an official deadline which is slightly different from the usual period. The lawsuit for malpractice must start within two years and 6 months of the supposed malpractice or within two years and six months of the last medication received if the lawsuit covers continuous treatment for the same illness. The continuous treatment must be for the injury, illness or condition that gave rise to the malpractice.
If you are unable to file a lawsuit within this timeframe, you will lose your right to sue. This right will only be reinstated if you fall into one of the exceptions that are found in other areas of the New York laws.
Exceptions To The Statute Of Limitations
There are some exceptions to the statute of limitations that you will need to be aware of. The first is the Discovery Rule which is an exception to the standard deadline when the victim cannot reasonably have learned that they have a medical malpractice case. In New York, the discovery rule is more limited than in other states and this need to be considered.
The rule will only apply to situations where a foreign object was left within the patient’s body after an operation. In these cases, the medical malpractice lawsuit may be filed within a year of the date of discovery of the foreign object. The law also states that the lawsuit can be filed within a year of the date of discovery of facts which would genuinely lead to the discovery of the foreign object.
Another exception is the statute of limitations for minor children. In New York, the statute does not start running until the child has reached 18 years of age with a single exception. The statute cannot be extended more than a decade after the alleged malpractice regardless of the age of the child when the malpractice occurred. This is very important for parents with young children who have suffered medical malpractice.
There are some other exceptions to the statute of limitations including the extension of the limit if the defendant has left the state after committing the malpractice. The limitations may also be extended if the victim has mental illness or mental disability. If you need to know more about the statute of limitations, you should look at the New York Civil Practice Law and Rules section 214-a.
Limits On Damages
In New York, there is no limit on the damages that could be awarded to victims of medical malpractice. This is not the case in all states, as some states do have a limit or cap on the damages. The amount awarded by the courts could range, and there is no limit on what this could be.
The Shared Fault Rules
When you go to trial in New York for medical malpractice, you need to consider the shared fault rule. If you are found to be partially liable for the injuries you sustained some damages that you are awarded will be reduced. This is due to the pure comparative negligence rule that is active in New York.
If you are found to be partially liable, the damages you are awarded will be reduced in proportion to your fault in the case. An example of this would be if you are awarded damages of $100,000 but were found to be 20% liable for the injuries sustained. Your damages would be reduced to $80,000 by taking away your 20% liability.
Before you go to trial, your attorney should be able to determine if you are partially liable or not. This is one of the reasons why you will need to be completely honest with your attorney and tell them everything about the case. This will ensure that both of you go into the trial knowing what could happen.
The Certificate Of Merit
If you are going to file a medical malpractice lawsuit in New York, your attorney will need to file a written certificate of merit. This must be done within 90 days of filing the malpractice lawsuit. The certificate must state certain information, and there are two options for the certificate that your attorney will need to choose.
The first is that the attorney has reviewed the facts of the case and that they have consulted with at least one other licensed doctor about the case. The attorney will also state that they have concluded based on the consultation that there is a reasonable basis for filing the malpractice lawsuit. It is very important that another doctor is consulted to ensure that there was malpractice in your case.
The second option is that the attorney was unable to see another doctor because the attorney had made three separate attempts to consult with three different doctors without success. The attorney will need to state that all 3 of these doctors would not agree to a consultation on the case. Further information about the certificate of merit law can be found in the New York CPLR section 3012-a.
If you believe that you have suffered from medical malpractice and wish to sue the medical practitioner, you need to hire an attorney. There are some intricacies to medical malpractice law in New York that a lawyer will know about and be able to handle.