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Med mal claims in New York – statute of limitations and contributory negligence

| Nov 25, 2020 | Medical Malpractice

Medical malpractice in New York is categorized as “Professional Malpractice” under the law. There are different timelines for when these actions must be filed. The plaintiff (the injured person filing the lawsuit) has the burden of proving their case.

Statute of limitations

In New York, medical malpractice actions must be commenced (filed) within two years and six months of the action complained of – what happened to the victim that he or she is filing the lawsuit for – or the last treatment that caused the act complained of, called a statute of limitations. However, if the victim is filing for relief from discovery of a foreign object in their body, the action may be filed within one year of the discovery of that object in the patient’s body. Also, there are special exceptions where the doctor failed to diagnose cancer or a malignant tumor where the timeline begins when the victim knew or reasonably should have known of the doctor’s failure to diagnose.

Contributory negligence and assumption of risk

Under New York law, if the injured patient or decedent contributed to his or her injury or assumed risk, it does not bar recovery of damages, called contributory negligence. However, the amount of damages that would have been recovered will be lessened according to the patient’s conduct. This means that if the patient contributed to the injury or death, the amount of damages that may have been recovered will be diminished in proportion with the contributory conduct or negligence.

Consulting an attorney experienced in personal injury and medical malpractice in New York can help those who have been injured by professional or medical malpractice. Laws governing these suits can be convoluted and complex. Attorneys experienced in the area have already helped those injured by malpractice and can assist those hoping to recover appropriate damages.

 

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