New York Brain Injury Statute of Limitations

General Negligence: 3-Year Deadline

For brain injuries caused by general negligence — including motor vehicle accidents, slip-and-fall accidents (premises liability), construction accidents, and other non-medical negligence — the statute of limitations is 3 years from the date of the injury (CPLR § 214).

Examples:

• Car accident TBI: You have 3 years from the date of the accident to file a lawsuit. [Link to: /brain-injury/motor-vehicle-accidents]
• Slip-and-fall TBI: You have 3 years from the date of the fall. [Link to: /brain-injury/slip-and-fall]
• Construction accident TBI: You have 3 years from the date of the accident — though Labor Law claims may have different considerations. [Link to: /brain-injury/nyc-construction]
• Assault TBI: You have 3 years from the date of the assault.

Medical Malpractice: 2.5-Year Deadline

For brain injuries caused by medical malpractice — including surgical errors, anesthesia errors, delayed diagnosis of stroke or brain hemorrhage, failure to monitor in ICUs, and birth injuries — the statute of limitations is 2.5 years from the date of the negligent act (CPLR § 214-a).

Examples:

• Anesthesia error causing hypoxic brain injury: You have 2.5 years from the date of the surgery. [Link to: /medical-malpractice/anesthesia-error] [Link to: /brain-injury/anoxic-brain-injury]
• Delayed diagnosis of stroke causing brain damage: You have 2.5 years from the date of the misdiagnosis. [Link to: /misdiagnosis/stroke-misdiagnosis]
• Failure to diagnose subdural hematoma: You have 2.5 years from the date the hematoma should have been diagnosed. [Link to: /brain-injury/subdural-hematoma]
• Surgical error causing brain injury: You have 2.5 years from the date of the surgery. [Link to: /surgical-errors/neurosurgery-malpractice]
• Birth injury causing brain damage (HIE): The 2.5-year deadline applies — but the infancy toll may extend it for the child. [Link to: /medical-malpractice/hie-claims] [Link to: /birth-injury-lawyer]

Municipal Hospital Claims: 90-Day Notice of Claim

If your brain injury occurred at a municipal hospital — including any NYC Health + Hospitals facility (Bellevue, Elmhurst, Lincoln, Jacobi, Kings County, Harlem, Woodhull, North Central Bronx, Metropolitan, Coney Island, Queens Hospital Center) — special rules apply:

• Notice of Claim within 90 days: You must file a Notice of Claim with NYC Health + Hospitals within 90 days of the incident (GML § 50-e).
• Shortened statute of limitations: The lawsuit must be filed within 1 year and 90 days (GML § 50-i) — significantly shorter than the standard 2.5 years for medical malpractice.
• 50-h hearing: NYC H+H may demand a 50-h hearing — a sworn examination before the lawsuit is filed.
• If you miss the 90-day deadline: Your claim is permanently barred — regardless of how strong your case is.

Wrongful Death: 2-Year Deadline

If the brain injury caused death — the wrongful death statute of limitations is 2 years from the date of death (EPTL § 5-4.1). This is separate from and shorter than the medical malpractice deadline.

Important: The wrongful death clock starts on the date of death — not the date of the negligent act. If the patient survived for some time after the injury before dying, the 2-year wrongful death clock starts from the date of death.

However: The underlying malpractice or negligence claim (called a "survival claim") has its own deadline — 2.5 years from the negligent act for medical malpractice, or 3 years for general negligence. These two deadlines operate independently — and you must comply with both. [Link to: /wrongful-death-lawyer] [Link to: /wrongful-death/statute-of-limitations]

The Infancy Toll for Minors (CPLR § 208)

For brain injuries to minors (children under 18), New York's infancy toll (CPLR § 208) may extend the statute of limitations:

- Medical malpractice: The 2.5-year statute of limitations is tolled (paused) until the child reaches age 18. The child then has until their 20th birthday (18 + 2.5 years) to file a medical malpractice claim. However, for municipal hospital claims, the 90-day Notice of Claim requirement still applies — even for minors. - General negligence: The 3-year statute is tolled until age 18 — giving the child until age 21 to file. - Wrongful death of a minor: The 2-year wrongful death deadline is NOT tolled by infancy — the 2-year clock starts on the date of death, regardless of the child's age. - Parents' claims: Parents' claims for economic damages (medical expenses) are NOT tolled during minority — they must be filed within the standard deadlines.

[Link to: /cerebral-palsy-lawyer/statute-of-limitations] [Link to: /birth-injury/statute-of-limitations]

The Continuous Treatment Doctrine

The continuous treatment doctrine can extend the statute of limitations in medical malpractice cases — when the patient continued to receive treatment from the same healthcare provider for the same condition after the negligent act.

Under this doctrine, the statute of limitations clock does not start until the treatment ends — as long as: - The patient continued seeing the same provider for the same condition - The provider was aware of the ongoing symptoms and continued to treat - The treatment was related to the same condition that was negligently treated

For brain injury cases: The continuous treatment doctrine may apply if you continued seeing the same neurologist, neurosurgeon, or rehabilitation specialist for your brain injury after the negligent act. However, the doctrine is applied strictly — and not all follow-up care qualifies. An experienced malpractice attorney can evaluate whether the doctrine applies to your case. [Link to: /medication-errors/statute-of-limitations]

The Discovery Rule (Lavern's Law)

New York's discovery rule — known as Lavern's Law (CPLR § 214-a) — applies specifically to cancer misdiagnosis cases. Under Lavern's Law, the 2.5-year clock starts when the patient discovers (or reasonably should have discovered) the malpractice — rather than from the date of the negligent act. There is also a 7-year outer limit.

Lavern's Law applies only to cancer cases — not to brain injury cases generally. However, if a brain injury case involves a brain tumor that was misdiagnosed, Lavern's Law may apply — since brain tumors are a form of cancer. [Link to: /misdiagnosis/brain-tumor] [Link to: /misdiagnosis/laverns-law]

What Happens If You Miss the Deadline?

If you miss the statute of limitations deadline, your claim is permanently barred. The court will dismiss your case — regardless of: - How strong your evidence is - How badly you were injured - How clear the negligence was - How sympathetic your situation is

There are very few exceptions — and they are narrow and discretionary. This is why it is absolutely critical to contact an attorney as early as possible. Brain injury cases are complex — requiring time to: - Obtain and review medical records [Link to: /resources/how-to-get-medical-records-for-a-lawsuit] - Consult with medical experts (neurologists, neuropsychologists, neurosurgeons) - Conduct neuropsychological testing [Link to: /brain-injury/mild-tbi] - Obtain DTI imaging [Link to: /brain-injury/dti-proof] - Prepare the certificate of merit (for malpractice cases) [Link to: /medical-malpractice/certificate-of-merit] - File the Notice of Claim (for municipal hospital cases) [Link to: /wrongful-death/notice-of-claim-nyc]

Do not wait. Contact MDLaw Firm at 347-524-5777 for a free consultation today. [Link to: /contact]

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.