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Infant Could Not File Late Notice of Malpractice Claim Against New York Hospital

Generally speaking, a claim for medical malpractice must be filed within two and one-half years (30 months) of an alleged act of medical negligence in the state of New York. While some circumstances can operate to lengthen the time for filing a claim, other circumstances can shorten the period substantially. For instance, if the defendant in a proposed Syracuse birth injury lawsuit is a governmental entity, the plaintiff may have as little as 90 days in which to file a notice of claim (a condition precedent to the filing of a lawsuit against certain government entities, including those who own or operate hospitals).

Facts of the Case

In a recent case, the petitioner was an infant, proceeding through his mother and natural guardian, who sought to assert a medical malpractice claim against the respondent city hospital corporation (a public entity). Although the infant was discharged from the hospital shortly after his birth in April 2013, he did not file a motion for leave to serve a late notice of claim until May 2016 – more than three years after the alleged act of medical negligence. The Supreme Court of New York County denied the petitioner’s motion for leave to serve a late notice of claim, and he appealed.

The Court’s Decision

The New York Appellate Division, First Department, affirmed the lower court’s order denying the relief sought by the petitioner. According to the court, both the infant and his mother received pre- and post-natal care at the respondent’s hospital in 2013. In the reviewing court’s opinion, any medical malpractice claim that the petitioner might have had against the respondent accrued upon the petitioner’s discharge from the hospital; thus the applicable claims period began to run more than three years prior to the filing of the petitioner’s motion for leave to serve a late notice of claim.

In denying the relief sought by the petitioner, the court went on to reject the petitioner’s argument that the “continuing treatment” doctrine extended the time for filing a claim under the circumstances presented. The court likewise rejected the petitioner’s contention that the delay in serving a timely notice of claim (or in seeking leave to file a late notice sooner) was due to the infant’s health issues. The court also noted that the petitioner had the initial burden of demonstrating that there had would be no substantial prejudice to the respondent if leave to file a late claim was granted and found that the petitioner had not met this burden; consequentially, the respondent was not required to make a particularized evidentiary showing, according to the reviewing court.

Speak to a Syracuse Medical Negligence Attorney

If your child has suffered a birth injury in a Syracuse or Rochester hospital, you should talk to an attorney as soon as possible. You have limited time in which to file a claim (especially if the defendant is a governmental entity), and failure to aggressively pursue your legal rights may result of forfeiture of your legal rights. The attorneys of DeFrancisco & Falgiatano, LLP, are currently reviewing hospital malpractice cases, including those involving birth injuries. For a free case evaluation, call us at 315-479-9000 to set up an appointment.

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