The medical malpractice statute of limitations is codified by statute in both the New York and Florida civil codes.
These statutes set a deadline by which you must file a medical malpractice lawsuit.
If you miss the deadline without filing a lawsuit or finalizing a private settlement, you will be unable to recover for your injuries.
Of course, you can always finalize a private settlement before the deadline.
If you find the deadline looming while you are still in settlement negotiations, however, it is best to file a lawsuit just to beat the deadline.
If you don’t, your opponent will lose motivation to settle with you.
The Statute of Limitations Countdown Clock
It helps to think of a medical malpractice statute of limitations (SOL) as a clock counting down to zero. The countdown usually begins when the malpractice occurs.
If an exception applies, the clock might not start until later. This delay will give you more time to file a lawsuit.
New York’s General Medical Malpractice Statute of Limitations
The general SOL for filing a New York medical malpractice claim is two years and six months after the malpractice occurred.
If you underwent a continuing course of medical treatment, however, the countdown begins on the date of your last treatment.
Exceptions
New York medical malpractice law includes several exceptions to the general SOL.
If an exception applies, the SOL clock begins running at some point after the negligent act or omission occurs.
Wrongful Death Claims
If the victim dies from medical malpractice, the SOL clock begins running on the date of death.
You then have two years (NOT two years and six months) to file a lawsuit. An extension may apply in the event of criminal prosecution against the defendant.
The Discovery Rule
You might not immediately discover that your doctor committed medical malpractice.
The discovery rule prevents the SOL clock from running until you discover (or should discover) that you have a medical malpractice claim.
The New York medical malpractice statute of limitations and the New York discovery rule interact in complex ways to determine the date that your claim expires.
The discovery rule applies in the following circumstances:
- Your healthcare provider left a foreign object inside your body. In this case, you have until one year after you discover or should have discovered the malpractice, whichever comes first, to file a lawsuit, even if the general statute of limitations has expired.
- Your healthcare provider failed to diagnose cancer or a malignant tumor. In this case, the SOL clock won’t start running until you discover both the failure to diagnose and the harm that this failure caused. However, the SOL clock cannot be extended more than seven years.
- If your doctor’s failure to diagnose your cancer or malignant tumor occurred during a continuing course of treatment, the SOL clock doesn’t begin ticking until your last treatment.
It’s important to speak with an experienced medical malpractice attorney to determine which deadline applies in your case.
Florida’s Medical Malpractice Statute of Limitations
Florida medical malpractice statute of limitations sets a two-year SOL deadline, starting from the date that the malpractice occurred.
Just as in New York, certain exceptions delay the date that the SOL clock begins to run.
Exceptions
The following exceptions apply to the Florida medical malpractice statute of limitations.
Wrongful Death Claims
The Florida wrongful death SOL clock begins running on the date that the victim dies, even if the malpractice occurred earlier.
A wrongful death claim expires two years after the death unless you file a lawsuit.
The Discovery Rule
Unlike the New York discovery rule, the Florida discovery rule applies to a broad range of medical malpractice claims.
The SOL clock does not begin running until you discover that you have a malpractice claim or should have found it through the exercise of due diligence.
However, you cannot bring a malpractice claim more than four years after the malpractice occurred, even if you discover it later.
This four-year hard deadline does not apply to a child who files a lawsuit any time before their eighth birthday.
Fraud, Concealment, or Intentional Misrepresentation
If the defendant hid their malpractice from you through fraud, concealment, or intentional misrepresentation, the SOL clock does not begin running until you discover your claim.
However, you cannot bring a malpractice claim more than seven years after the malpractice occurred.
The hard deadline does not apply to a child victim who files a lawsuit before their eighth birthday.
Certain serious birth injuries
Certain types of medical malpractice involving severe birth injuries are subject to a separate medical malpractice statute of limitations.
Let Us Fight for Your Rights
At the Law Offices of Theodore A. Naima, fighting for the rights of injured victims is what we do.
One of the ironic consequences of his successful 25-year record of trial advocacy is that the more trials Mr. Naima wins, the friendlier our opponents are towards private settlements.
Call us at 516-280-7311 or contact us online for a free consultation. We maintain offices in NYC, Long Island, and Miami.
The information provided on this page speaks in general terms. Of course, there are often exceptions that apply in certain situations. For a complete list of all exceptions please consult the Consolidated Laws of New York. Attorney Naima is also happy to answer any questions you have about your injuries or ability to pursue a claim against the responsible party.
Theodore A. Naima
Theodore A. Naima is the founding partner of the Law Offices of Theodore A. Naima, a Personal Injury & Medical Malpractice Law Firm based in New York. In 2015, Ted was awarded the prestigious AV Preeminent® rating from Martindale-Hubbell®, the company that has long been recognized as setting the gold standard for lawyer ratings, signifying the highest degree of peer recognition and professional excellence.
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