Medical malpractice statute of limitation requirements in New York can be tricky.
The basic idea behind these laws is to limit the time in which a plaintiff is allowed to bring a lawsuit claiming malpractice.
Plaintiffs are encouraged not to “sit on their rights” so that cases can be handled efficiently when evidence is easiest to obtain.
In addition, the laws seek to ensure potential defendants are not exposed to liability indefinitely.
However, medical malpractice attorneys are well aware that these time limits can wreck clear injustice when not sufficiently flexible.
For example, there seems to be a worrying hole in the law as it relates to breast cancer and mammograms.
In general, the statute of limitations for New York medical malpractice cases is two and a half years from the date of the malpractice.
That time can be tolled (postponed) when there is a later discovery of an object left in the body after surgery or in the case of continuous treatment by a physician.
But what happens when a radiologist misreads a woman’s mammogram film?
Or fails to report a suspicious finding?
The woman goes on her way thinking she is healthy until her next mammogram or doctor’s visit.
When that cancer is finally discovered, it might have spread to other areas of the body.
In the worst cases the woman might have Stage IV cancer, and her chances of recovery become significantly less than if the cancer had been caught early.
Yet, in these tragic cases, where human lives could have been saved by a correct and proper diagnosis of the original mammogram results – if a woman in New York discovers the mistake more than two and a half years later, she is barred from bringing a medical malpractice lawsuit.
New York’s jurisprudence so far has not allowed for tolling the start of the two and a half year time clock in cases where a mistake is made in the reading of a mammogram film.
The case of Nykorchuck v. Henriques decided this in 1991, and since then many women have been unfairly denied access to our judicial system.
Many advocates argue that New York needs to amend the law to correct this error and fill in the hole.
I add my voice to that plea.
Fairness and consistency demand a change.
A missed tumor on a mammogram film is no different in this regard than an object left behind in surgery–the two situations should not be treated differently.
The patient often has no way of knowing about the radiologist’s mistake until it is too late, and it is an injustice to deny these women access to a judicial remedy.
A change in the law to allow the statute of limitations to run for one year after the woman actually discovers the mistake in the reading of her mammogram film would be a much fairer option.
If the society recognizes that patients should have judicial relief when these mistakes are made, it makes little sense to deny that relief as a result of situations completely out of the patient’s control.
Hopefully calls to change the law will yield results.
Until then, it is vital for local residents to remember that time cannot be wasted in cases involving breast cancer and mammogram errors.
If you or a loved one finds yourself in this position and belief that a cancer diagnosis was delayed because of medical malpractice, it is crucial to seek the advice of a New York City medical malpractice attorney as soon as possible.
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Here, at The DiPietro Law Firm, we’re committed to helping victims of sexual abuse and assault find the justice they deserve.
All information discussed during our consultations always remains completely 100% confidential.
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