C. Medical Malpractice Procedure

• Jurisdiction: New York

C. Medical Malpractice Procedure

1. Statute of Limitations

The basic statute of limitations for a medical, dental or podiatric malpractice cause of action is two years and six months from the date of accrual.¹⁹¹ However, the statute may toll because of the continuous treatment doctrine,¹⁹² or the placement of a foreign object in the patient's body.¹⁹³ The Court of Appeals has narrowly construed these exceptions.¹⁹⁴

Effective January 31, 2018, the legislature amended CPLR 214-a to change the limitations period for medical malpractice claims alleging failure to diagnose cancer or malignant tumor, whether by act or omission. The statute now provides that the two and one half year statute of limitations for such cases starts to run from the latter of either (1) when the person knows or reasonably should have known of the alleged negligent act or omission, and knows or reasonably should have known that it caused injury, provided that such action shall be commenced no later than seven years from the alleged act or omission, or (2) the date of the last treatment, where continuous treatment exists for the injury, illness or condition. The legislature also amended CPLR 203(g)(2), making the statute of limitations applicable in actions against the State and municipalities.

Other factors may affect the basic two-year and six-month statute of limitations in a medical malpractice action. A cause of action for wrongful death based on medical malpractice holds a two-year statute of limitations.¹⁹⁵ However, the claim for medical malpractice must be alive when the plaintiff's decedent dies.¹⁹⁶ And the statute of limitations for the plaintiff's decedent's action for conscious pain and suffering is two years and six months from the accrual date. This can be shorter than the two-year statute of limitation for the plaintiff's decedent's wrongful death cause of action.¹⁹⁷ These are independent statutes of limitations and should be tracked as such. There are limited tolls and exceptions which must be carefully read, and better avoided if possible.¹⁹⁸

A wrongful birth medical malpractice claim by the parents for the birth of their child accrues on the birth of the child.¹⁹⁹

A client's "medical malpractice" case may not sound in medical negligence. Instead, it may constitute a claim for common law negligence,²⁰⁰ assault and battery,²⁰¹ fraudulent concealment²⁰² or optometric malpractice,²⁰³ each holding different statutes of limitations.²⁰⁴ A viable claim for medical malpractice may suffer dismissal if a municipality operates the defendant hospital and the plaintiff does not file a proper notice of claim.²⁰⁵ Where medical malpractice actions accrue during infancy, the tolling of the statute of limitations due to infancy is limited to 10 years from the time of accrual.²⁰⁶ A defendant intentionally withholding the plaintiff's medical records may be estopped from asserting the statute of limitations.²⁰⁷

A defense medical examining physician enjoys a limited physician-patient relationship with the plaintiff being examined. Therefore, a plaintiff alleging injury from a defense medical examining physician must bring suit within two years and six months of the occurrence, rather than under the more generous three-year general negligence statute of limitations.²⁰⁸

2. Continuous Treatment

The Court of Appeals in 2018 continued its uneasy application of the continuous treatment doctrine. In Lohnas v. Luzi,²⁰⁹ the Court of Appeals by a 4–3 majority held that a patient who returned on an as-needed basis to a surgeon with a 30-month gap in treatment still created an issue of fact as to whether the continuous treatment doctrine applied, precluding summary judgment. The dissent argued that the operative phrase was treatment, not merely a continuing relationship. It felt that the majority had undermined the public policy grounding the continuous treatment doctrine. The case is a valuable read as it discusses the underlying tensions and policies of the continuous treatment doctrine.

If any choice exists between suing the case immediately and preserving the original statute of limitations, and relying on the continuous treatment doctrine, consider suing the case immediately.

To apply the continuous treatment doctrine, the doctor must be treating the patient for an ongoing medical condition. Neither a continuing physician-patient relationship nor the continuing nature of the diagnosis or misdiagnosis suffices.²¹⁰ There is no continuous treatment if the doctor and the patient do not expect that the relationship will continue.²¹¹ Efforts to arrive at a diagnosis do not constitute a continuation of treatment.²¹²

The decisions on continuous treatment range across the board—in keeping with the fact-intensive nature of the inquiry.²¹³ The rereading of a pathology slide for purposes other than diagnoses did not trigger the continuous treatment doctrine.²¹⁴ However, annual breast examinations that monitored a plaintiff's fibrocystic condition presented an issue of fact on whether the examinations were routine (no toll of the statute of limitations) or constituted follow-up treatment for a fibrocystic breast condition (toll of statute of limitations).²¹⁵

Frequent and regular visits for treatment for the same underlying condition that is at issue in the case will trigger the continuous treatment doctrine.²¹⁶ However, physical and diagnostic examinations alone of the condition on which the claim is based do not constitute continuous treatment.²¹⁷ A discussion with a second medical provider from an unrelated doctor on the condition at issue does not preclude applying the continuous treatment doctrine. The key factor is that the plaintiff continually relied on the medical provider subject to the continuous treatment doctrine.²¹⁸

Emails between a patient and physician can constitute treatment tolling the statute of limitations under the continuous treatment doctrine.²¹⁹

3. Certificate of Merit²²⁰

Each complaint in a medical, dental or podiatric malpractice action must have attached to it a certificate that states the attorney has reviewed the case with a physician, dentist or podiatrist, licensed in this or any other state, whom "the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action."²²¹

There are limited exceptions to this filing requirement. For example, if the statute of limitations is about to expire and the attorney...