The Statute of Limitations in Foreign Object Medical Malpractice Cases

In every civil action, plaintiffs must commence a suit within a very specific period of time.  The amount of time one has will vary depending on the claim.  Claims founded in medical malpractice have a 2 ½ year statute of limitations.  Time starts to tick once the act or omission being claimed has occurred.  This time period will start even if the patient is not yet aware that he or she has been the victim of medical malpractice.

There is an exception, however, that may extend the time in which a plaintiff has to commence suit.  Certain medical malpractice cases involve foreign objects being inadvertently left in a patient’s body.  It could take more than several years for a patient to discover the object.  New York courts have recognized this problem and adjusted the limitations period to accommodate these types of malpractice. 

This recognition first came about through case law in Flanagan v. Mount Eden General Hospital and was later enacted into law in 1975.  Known in the legal profession as the ‘discovery rule’, plaintiff’s who are suing because of foreign object malpractice have one year after the object was discovered to commence suit.  This applies even if the discovery occurred after 2 ½ years has already passed. 

Courts strictly apply this rule to foreign objects that were inadvertently placed in a patient’s body.  For example, while a pacemaker is not naturally found in a person’s body, it is not considered to be a foreign object.  This is because the pacemaker was put into the patient to treat the patient’s medical condition.  Therefore, only objects that should not have been placed into the patient are considered to be foreign objects.  Surgical clamps, gloves, sponges, and syringes are typical examples of foreign objects that medical professionals have left inside of patients giving rise to a negligence claim based on medical malpractice.

Victims of this type of negligence may suffer from extreme pain and discomfort for years until doctors finally find the problem.  If you or a loved one has endured this type of harm, an experienced Hudson medical malpractice attorney may be able to help.  You may be able to receive compensation for wages that you lost from missing work, money spent on additional medical care, and even for your pain and suffering.  Medical malpractice cases can be very complex.  Contact our attorneys today for help.    

The attorneys at Greenberg and Greenberg handle medical malpractice case throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.

Medical Malpractice 101: Hudson Medical Malpractice Attorney Explains the Important Basics

New York medical malpractice is a form of negligence.  Negligence is an event that occurs when one person or entity owes a duty to another person.  Any duty one owes to another is generally about not causing harm, using a certain level of precaution and care, and is about doing as a reasonable person would have done in a similar situation.  The duty could be a requirement to do, or not to so, something; an act or omission.  In the medical setting, medical providers have duties to not cause harm to patients and to properly treat patients.

The duty owed by medical professionals, also referred to as the standard of care, varies depending on several factors.  First, the region in which medical professionals practice affects the standard of care owed to patients.  Second, the specialty in which the professional practices affects the duty of care.  Third, different types of patients receive different standards of care.  For example, doctors who treat persons with diabetes must follow specific protocols in regard to treating diabetes patients.  Additionally, the patient’s age, race, sex, and secondary aliments may also affect how a doctor is required to treat him or her. 

This may sound very confusing to many people.  An experienced New York medical malpractice attorney will be able to help you figure out the standard of care that was due to you.  Further, expert testimony will be needed to testify as to what the standard of care is in each unique case. 

Once a medical professional fails to meet the requisite standard of care, he or she has committed an act of negligence.  But this alone is not enough to hold the practitioner civilly liable for your harm.  In order to be liable, the doctor’s negligence must have been the actual cause of your injury or damages.  This is referred to as causation and it must be proved at trial.

The injuries that you have suffered are referred to as damages.  Damages are broken down into several categories.  First are economic damages.  This includes the additional money you have spent on treating the injuries caused by the medical professional as well as lost earnings, and lost earning potential.  Then there are non-economic damages which compensate patients for pain and suffering.  Lastly, there are punitive damages.  Punitive damages seek to punish a medical professional for their negligence as a way to deter future medical malpractice.  Damages must also be alleged and proved during the course of a medical malpractice case.  Keep in mind that New York has not placed a cap on the amount of damages that you are entitled to receive in a Hudson medical malpractice case.

Lastly, in order to successfully hold your primary physician, dentist, nurse, or hospital liable for your harm, you must file suit within a specific period of time.  Attorneys refer to this as satisfying the statute of limitations.  The limitations period for medical malpractice expires 2 ½ years after the date of the negligence or after the date on which your continuous treatment ended.  In the case of foreign objects left inside your body, the limitations period expires one year after the date the object was discovered or after the date in which you received sufficient information to lead to such a discovery.   For a more detailed explanation of the statute of limitations, visit our page here for a blog post discussing the nuances of this important rule.

Because of the statute of limitations, you should quickly contact an experienced New York medical malpractice attorney if you or a loved one has been the victim of medical negligence. 

Lack of Informed Consent in New York Medical Malpractice Cases

A person determines what happens to his or her body.  This concept is true in medicine under the notion of informed consent.  Patients need to provide informed consent to any procedure prior to it being performed on him or her.  There are few exceptions to this rule, such as emergencies.

The case that laid the foundation for informed consent laws across the country, including New York medical malpractice cases, was a Minnesota case in 1905 called Mohr v. Williams.  In this case, the plaintiff sought out an ear specialist, the defendant, because she was having problems with both of her ears, but particularly the right ear.  The defendant agreed with the patient about the right ear and said that in order to correct the impairment surgery would be necessary.  The plaintiff decided to undergo the surgery.  Once under general anesthesia, the defendant noticed that her left ear was worse and decided to perform the operation on the left ear rather than the right ear the patient consented to.

The patient was upset once she learned that the doctor performed the operation on her left ear without obtaining her permission.  The plaintiff brought an action for civil battery (“intentional and direct, physical contact against another without that person’s consent or authority of law to do so”) against the doctor.  A civil battery is a type of personal injury.

The trial court found for the plaintiff.  While the defendant had consent to perform an operation, he only had consent to perform the operation on a specific part of the patient’s body (the right ear).  This made the consent specific, not general.  Therefore the defendant could not perform any operation he wanted to, only the operation the patient wanted and consented to.  The reasoning of the court was that the doctor was acting on the patient’s behalf and needed to follow her instructions as to what was to be done to her body.  Additionally, since the surgery the doctor decided to perform on the left ear was not performed in order to prevent serious or life-threatening harm to the life of the patient, it did not fall under the emergency doctrine.  Therefore the doctor did not have the authority to perform the operation on the left ear of the patient.

In medical malpractice actions, New York courts have followed the same reasoning and applied this rule.  Under New York Public Health Law Section 2805-d, informed consent is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonable foreseeable risks and benefits involved as a reasonable, medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.”  When trying to show that there was a lack of informed consent, it is necessary to show that “a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition . . . .”

Whether informed consent was given is not always obvious and it needs to be investigated.  If you or a loved one believes that your rights have been violated because a health care provider did not inform you of the procedure properly, contact a Hudson medical malpractice attorney as soon as possible.

Contact one of our experienced Hudson medical malpractice attorneys who are knowledgeable in this area of law to determine whether you may have an informed consent issue with the care and treatment you received.  The attorneys at Greenberg and Greenberg handle cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.

Medical Malpractice Statute of Limitations: What You Need to Know

In almost every single type of case, whether criminal or civil, there is a fixed period of time that a party must initiate an action within.  This time period is known as the statute of limitations.  Essentially, this is a time limit on your potential action.  The statute of limitations period if very important because if a party attempts to bring a claim when the statute of limitations has expired, that claim will be barred. 

Both federal and state governments create the various statute of limitation periods.  The New York State Legislature has codified many of the statute of limitation periods for civil litigation in the Civil Practice Law and Rules.  A lot of the time frames created by the legislature and contained in the Civil Practice Law and Rules come and go rather quickly.  This is why it is essential for an injured party to retain an experienced Hudson personal injury attorney to protect your rights.

Medical malpractice has a statute of limitations period.  It is provided for in Civil Practice Law and Rules Section 214-a.  This section provides for a two and a half (2 ½) year time limit on a medical malpractice claim.  Specifically, this section states “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complaint of . . . .” 

This is the general rule and requires the patient to bring the medical malpractice action right after the treatment rendered to him or her.  The statute of limitations begins to run whether or not the patient is aware of the wrongdoing.  Further, this statute of limitation applies to all medical providers, not just physicians, dentists, podiatrists, and surgeons, but also to nurses, hospital staff, physician assistants, hygienists, and other health care providers.

There are two exceptions to this rule.  The first exception is called the “continuous treatment doctrine.”  Under CPLR Section 214-a, an action for medical malpractice may also be brought within two and a half years of “last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure[.]” 

Thus, where a physician makes a mistake in treatment, the law provides him or her an opportunity to correct it without abridging the rights of an injured patient.  For instance, if a surgeon makes a mistake during a procedure in January and performs a second procedure to try and fix the mistake in March, the statute of limitations for the surgical error begins to run in March—not January.  It is important to note that the “continuous treatment” cannot be examinations undertaken at the request of the patient for the “sole purpose” of ascertaining the state of the patient’s condition.

The second exception is called the “foreign object” exception.  Under CPLR Section 214-a, an action for medical malpractice “based upon the discovery of a foreign object in the body of a 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.”

Therefore, the legislature has provided that a physician or surgeon who leaves a piece of medical equipment inside of a patient can be liable for this error after the two and a half year statute of limitations period has run.  This is as long as the patient did not know or should have known that the medical equipment was left inside of him or her.  An example of this is where a surgeon leaves a pad used to clot bleeding inside of the patient after the surgery.  However, it is important to note that a fixation device, such as a stitch, or a prosthetic aid or device, is not considered a foreign object and does not invoke this rule.

The medical malpractice statute of limitations is very important and requires an experienced Hudson medical malpractice attorney to determine what, if any, exceptions may apply.  The attorneys at Greenberg and Greenberg handle cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.