Ask The Judge: Too late to sue for medical malpractice?

Ask the Judge

 By Judge Frank R. Bayger (retired)


Judge Frank Bayger (retired)

Dear Judge Bayger: I broke my arm four years ago while riding my bike. I was taken to ECMC where they put plates and screws into my arm to fix it. After a year, I was told that I was healed (they didn’t take the hardware out) and I’m supposed to be all right. A couple of months ago, I still felt some numbness and tingling in my arm. I went to see a lawyer about suing the hospital, but he says it is too late and I can’t. Why not? Yours truly, S.J.

Dear S.J., In all likelihood, the main reason you do not have a case is because the statute of limitations ran out. Most legal causes of action have a particular time frame within which you must bring your lawsuit. The time limit is set by state law.

For most medical malpractice cases, the statute of limitations is two and a half years from the date of the misdiagnosis or maltreatment. That time period may be tolled if certain conditions exist, such as continuous treatment or whether the patient is a minor.

If your broken arm was treated in the normal course, it would take about a year to evaluate the extent of any permanent condition. Unless you were specifically prescribed additional treatment during the following time, your statute of limitations would have expired two and a half years after you were told that you were healed. Particularly if you only reported feeling “something wrong” within the last couple of months, the time to take action has passed.

In a medical situation, if you feel something isn’t right, you have to speak up immediately. If your doctor won’t acknowledge the problem, get a second opinion to either confirm or disprove your fears.

It is difficult to prove a medical malpractice case without timely medical evidence to support your claim. Your lawyer also likely quickly dismissed your case because you were treated at ECMC, which is a public hospital. Under New York law, you must file a notice of claim within 90 days after the claim arises before you can bring a lawsuit. You don’t have to bring the lawsuit immediately, but you have to put the hospital on notice so they have an opportunity to investigate in a timely fashion. You have one year and 90 days from the date of the occurrence giving rise to the claim to bring the lawsuit.

With the court’s permission, you may file a late notice of claim, but that would only be granted if the court believes the public corporation (the hospital) had acquired actual knowledge of the essential facts that constitute the claim within the 90 days. New York’s highest court, the Court of Appeals has recently held that possession of the medical records alone is not enough to constitute notice of the claim. A plaintiff would need a strong excuse as to why the notice was late otherwise.

(Retired State Supreme Court Justice Frank R. Bayger invites you to submit legal questions pertaining to personal injury or wrongful death cases to him for a published response. Email your questions to Judge Bayger, a Hall of Fame trial lawyer, and the judge will respond in writing in the Niagara Falls Reporter.

Send your email to or write the Law Firm of Frank R. Bayger, P.C., 2578 Niagara Falls Blvd., Niagara Falls, NY 14304.)

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