New York Medical Malpractice Statute of Limitations

Lavern's Law: Cancer Misdiagnosis Discovery Rule

Lavern's Law (CPLR § 214-a, as amended) is the most important exception to the standard 2.5-year deadline. Named after Lavern Wilkinson, who died of cancer after her diagnosis was missed at Bellevue Hospital, this law allows the statute of limitations to run from the date the patient discovers the misdiagnosis, rather than from the date the malpractice occurred.

Under Lavern's Law, for cancer misdiagnosis, delayed diagnosis, or failure to diagnose cancer cases, the 2.5-year clock starts from one of the following dates, whichever is later: - The date the patient discovered or reasonably should have discovered the malpractice, OR - The date the patient discovered or reasonably should have discovered the injury.

There is an outer limit of 7 years from the date of the malpractice, meaning that even with the discovery rule, no claim can be filed more than 7 years after the malpractice occurred.

Lavern's Law applies specifically to cancer cases. It does not apply to other types of misdiagnosis (e.g., stroke, heart attack, infection). For non-cancer misdiagnosis cases, the standard 2.5-year deadline from the date of malpractice still applies.

If you believe your cancer was misdiagnosed or diagnosed late, it is critical to contact an attorney immediately to determine whether Lavern's Law applies and to ensure you do not miss the applicable deadline.

Continuous Treatment Doctrine

The continuous treatment doctrine is another critical exception to the standard 2.5-year deadline. Under this doctrine, if you continued receiving treatment from the same provider for the same condition that was the subject of the malpractice, the statute of limitations clock does not start running until the course of treatment ends.

For example, if a surgeon negligently performed a procedure on January 1, 2022, and you continued to see that same surgeon for follow-up care related to the procedure until June 30, 2023, the 2.5-year clock would start on June 30, 2023, giving you until December 30, 2025 to file a lawsuit.

Key requirements for the continuous treatment doctrine: - The treatment must be for the same condition that was the subject of the malpractice. - The treatment must be from the same provider or facility. - The treatment must be ongoing and active — a mere follow-up appointment or monitoring is generally not enough. - The doctrine does not apply to a course of treatment that has already ended and is merely being continued for the patient's convenience.

The continuous treatment doctrine is heavily litigated and is one of the most common issues in New York malpractice cases. If you were continuously treated for the same condition, this doctrine may extend your filing deadline significantly.

Infancy Toll for Minors (CPLR § 208)

Under CPLR § 208, the statute of limitations is tolled (paused) for minors until they reach the age of 18. This means that if a child was injured by medical malpractice at birth, the 2.5-year clock does not start until the child turns 18, giving them until their 20th birthday to file a lawsuit.

However, there are important limitations: - The infancy toll does not extend the deadline indefinitely. There is an outer limit, and for claims against municipal hospitals, the infancy toll does not extend the Notice of Claim deadline. - For birth injury cases (e.g., cerebral palsy, Erb's palsy, HIE), the infancy toll is particularly important because the malpractice occurred at birth, and the child may not show symptoms until years later. - Parents can also file a claim on behalf of the minor child, but the parent's own claim for medical expenses may be subject to the standard 2.5-year deadline.

If your child was injured at birth, it is still advisable to consult with an attorney as early as possible, even though the infancy toll may extend the deadline. Evidence is best preserved when obtained promptly, and the continuous treatment doctrine may also apply.

Municipal Hospital: 1 Year & 90 Days + Notice of Claim

If the malpractice occurred at a municipal/public hospital operated by NYC Health + Hospitals (such as Bellevue, Kings County, Harlem, Jacobi, Elmhurst, Lincoln, Metropolitan, Woodhull, Coney Island, or Queens Hospital Center), special and significantly shorter deadlines apply.

90-Day Notice of Claim: Under New York General Municipal Law § 50-e, you must file a formal Notice of Claim with the hospital within 90 days of the date of the alleged malpractice. This is a strict deadline — missing it can bar your claim entirely.

50-h Hearing: After the Notice of Claim is filed, the hospital may demand a pre-suit hearing where you will be questioned under oath about your claim.

1 Year & 90 Days Statute of Limitations: For municipal hospitals, the statute of limitations is 1 year and 90 days from the date of the malpractice. This is significantly shorter than the standard 2.5-year deadline for private hospitals.

The combination of the 90-day Notice of Claim deadline and the 1-year-90-day statute of limitations means that you have effectively only 90 days to consult with an attorney and initiate the claim process if you were harmed at a public hospital. This is one of the shortest deadlines in New York law, and missing it is almost always fatal to the case.

If you believe you were harmed at a NYC Health + Hospitals facility, contact a lawyer immediately.

Wrongful Death: 2-Year Deadline (EPTL § 5-4.1)

If the malpractice resulted in death, a separate wrongful death claim must be filed under EPTL § 5-4.1. The statute of limitations for wrongful death in New York is 2 years from the date of death.

This deadline is independent of the medical malpractice statute of limitations. Even if the malpractice occurred years before the patient died, the wrongful death clock starts from the date of death, not the date of malpractice.

Key points about wrongful death deadlines: - The 2-year deadline runs from the date of death, not the date of the malpractice. - A personal representative must be appointed by the Surrogate's Court to file the wrongful death action. - For municipal hospitals, the 90-day Notice of Claim requirement also applies to wrongful death claims. - The continuous treatment doctrine does not apply to wrongful death claims — the clock starts strictly from the date of death. - A separate survival action for the deceased's conscious pain and suffering before death may also be available, subject to the standard 2.5-year malpractice deadline from the date of malpractice.

Because wrongful death and survival claims have different deadlines, it is critical to evaluate both claims promptly after a death.

Foreign Object Discovery Rule

Under CPLR § 214-a, if a foreign object (such as a surgical sponge, instrument, or device) was left in the patient's body, the 2.5-year statute of limitations runs from the date the object was discovered or reasonably should have been discovered, rather than from the date of surgery.

This discovery rule applies specifically to foreign objects and does not extend to other types of surgical errors. A foreign object is something that has no therapeutic purpose and should have been removed. Objects that are intentionally left in the body for therapeutic purposes (such as joint replacements or surgical mesh) are not considered foreign objects for this purpose.

If you have discovered that a surgical object was left in your body, contact an attorney immediately to ensure the applicable deadline is met.

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.