NEW YORK Medical Malpractice
What is medical malpractice IN NEW YORK?
New York medical malpractice is the negligence of a doctor, hospital or medical provider. For example, medical negligence in New York is the doctor’s deviation or departure from accepted community standards under the circumstances. Medical malpractice includes but not limited to:
- Failure to diagnose;
- Delay in treatment;
- Surgical errors; and
- Medication errors.
New York medical negligence is the doctor or hospital’s omission or failure to use reasonable care under the circumstances that a reasonably prudent New York doctor would not do under the circumstances, or failing to do something that a reasonably prudent New York doctor would do under the circumstances.
Your New York doctor or medical professional is obligated to have a reasonable degree of knowledge and skill that is expected of an average doctor who provides the particular medical service in the New York medical community in which the doctor practices. Your doctor is not required to have an extraordinary skill which is only possessed by a few exceptional doctors. All your doctor is required to do is keep reasonably informed of new developments in his particular specialty in the medical field and to practice pursuant to the approved methods and means of treatment in general use.
In order to have a judge or jury find your doctor liable for medical malpractice in New York we must prove four things:
- First, a legal duty of care on the part of the doctor to provide care and treatment;
- Second, the doctor breached the duty of care and deviated or departed from accepted practice;
- Third, that such departure was a proximate cause of injury; and
- Fourth, you suffered damages as a result of the doctor’s breach of his duty of care.
When must you start an action for medical malpractice in new york?
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 a 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.
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.
The term “foreign object” shall not include a chemical compound, fixation device or prosthetic aid or device.
If your cause of action is based upon the discovery of a foreign object in your body, 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.
What is the significance of the “continuous treatment” doctrine in your New York medical malpractice case?
New York Civil Practice Law and Rules section 214-a provides that a medical malpractice action must be commenced within 2 1/2 years from the date 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 said act, omission or failure.
The “continuous treatment” doctrine applies a toll to the statute of limitation. This is important in determining whether a lawsuit is commenced within the 2 ½ year period or if a municipality is involved whether a notice of claim was filed within the 90 day period after the claim arise. Under the “continuous treatment” doctrine a Statute of Limitations or a notice of claim period does not begin to run until the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.
Treatment does not necessarily terminate upon your last visit if further care or monitoring of your condition is explicitly anticipated by you and your physician which may be evidenced by a scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized your treatment history.
Free Legal Consultation
If you or a loved one have been injured as a result of the negligence of a doctor, nurse or hospital the law has strict deadlines to seek compensation for your damages call New York medical malpractice lawyer Bryan J. Hutchinson now at (718) 671-0900 for a free confidential consultation.