One of the most disturbing aspects of litigating medical malpractice cases on behalf of plaintiffs is having to tell them their case, as meritorious as it may be, cannot be brought because the two and one-half year statute of limitations has passed. Usually, the person has deliberated for too long about whether to bring a case, and by the time something motivates them to actually contact a lawyer, the statute has run. But the real heartbreakers occur when the victim of medical malpractice has no idea that any malpractice has occurred, until its ugly results surface more than two and one-half years after its commission. What am I talking about? Here is an example that I have encountered more than once. Someone has complaints of coughing, shortness of breath and throat irritation, prompting his doctor to run several diagnostic imaging studies, and leading to a diagnosis of lung cancer. As the victim’s current treating physician sorts through his patient’s prior imaging studies, he notices that three years before, when the patient had a chest x-ray after a long bout with the flu, the radiologist had reported on the existence of a small area on a lung that needed further diagnostic work up. That work up was never done, and was apparently ignored by the patient’s primary care physician at the time, and now the patient has advanced cancer at exactly the same spot.
Because the tumor is not considered a “foreign object,” which would give such a patient another year to commence an action (CPLR 214-a), the patient with cancer has no recourse in court, through no fault of his own. Any way you look at it, that is just not fair. What can be done to change this?
Every now and then, changes to the the statute of limitations for medical malpractice that purport to address this problem are proposed, but they have not yet made it into law. The most recent examples of such attempts were produced by the New York State Senate and the New York State Assembly (click on “Text” link to see the Act). Both versions address the problem I alluded to above by including the following language within the “exceptions” to the general rule. I will bold the new language.
“An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the accrual of any such action. For purposes of this action, the accrual of an action occurs when one knows or reasonably should have known of the alleged negligent act or omission and knows or reasonably should have known that said negligent act has caused an injury.”
That’s a great start toward addressing the current unfairness in the statute. But the Senate’s version takes it a step further, in its paragraph “2.” It contains a “revival” clause, allowing potential plaintiffs to start an action that, as of the date of the new statute, was time-barred. Alternatively, if a potential plaintff’s case had been dismissed on statute of limitations grounds prior to the effective date of the new statute, an action may be started within one year.
The draft versions are not perfect. But they are certainly steps in the right direction. The current loophole has prevented, and will continue to prevent plaintiffs with legitimate medical malpractice claims from seeking and obtaining just compensation. It’s high time for a change. Can you hear me up there in Albany?