Medical and Dental Malpractice
A bad outcome is not malpractice. A departure from the standard of care that caused harm is.
That distinction is the whole case, and it is why these cases are decided on records and expert testimony rather than on how badly things went.
The deadline: 2 years and 6 months.
And the clock generally starts on the date of the malpractice — not the date you found out about it. (CPLR 214-a)
That is shorter than the deadline for most other injury claims in New York, and it is the reason valid malpractice cases are lost.
Two exceptions that matter
Continuous treatment
If you kept treating with the same provider for the same condition, the clock may run from the last date of that treatment rather than the date of the error. Routine check-ups undertaken only to monitor your condition generally do not extend it.
Cancer misdiagnosis — "Lavern's Law"
If the claim is a negligent failure to diagnose cancer or a malignant tumor, the two and a half years may instead run from when you knew or reasonably should have known of both the error and the resulting injury — subject to an outer limit of seven years from the act or omission. (CPLR 214-a[b])
This discovery rule applies only to cancer and malignant tumor misdiagnosis. It is not a general discovery rule for malpractice. Do not assume it covers your case.
Foreign object left in the body: one year from discovery.
If you think a deadline may be running, call. Do not wait for a response before seeking counsel.
What these cases involve
- Failure to diagnose, or delayed diagnosis — cancer, infection, cardiac events, stroke
- Misread imaging and laboratory results
- Surgical errors
- Medication and anesthesia errors
- Birth injuries
- Emergency room negligence
- Failure to obtain informed consent
- Dental malpractice — nerve injury, extraction and implant errors, failure to diagnose oral disease and periodontal conditions
- Denial of medical treatment
How a malpractice case is built
The records come first. Before anything is filed, the complete medical record has to be obtained and reviewed — often across multiple providers, and often including records the patient has never seen.
A physician has to review it. New York requires the attorney to file a certificate of merit(CPLR 3012-a) stating that they have reviewed the facts and consulted with a licensed physician who concluded there is a reasonable basis for the action. In practical terms: no case is filed that a qualified doctor has not first said is real.
The standard of care is proved by experts. The question is not whether the outcome was bad. It is what a reasonably competent practitioner would have done, and whether the departure from that standard caused the harm.
Causation is usually the battleground. Defendants frequently concede that something went wrong and argue that it changed nothing — that the outcome would have been the same regardless. Meeting that argument is most of the work.
What New York does not do
New York has no cap on medical malpractice damages. Not on pain and suffering, not on economic loss. Many states cap non-economic damages; New York does not.
What to do
- Request your complete medical records — from every provider involved, in writing.
- Write down what you remember while it is fresh: dates, names, what was said.
- Keep treating, and follow through on care. Your health comes first, and gaps in treatment also become a defense argument.
- Do not sign a release from a hospital, practice, or insurer without advice.
- Do not wait. The two and a half year clock is shorter than people expect, and it often started before you knew anything was wrong.
Frequently asked questions
How do I know if I have a malpractice case?
You generally do not, until the records are reviewed by a qualified physician. That review is how these cases are evaluated, and it is why an initial call is about getting the records, not about predicting an outcome.
What is the deadline in New York?
Two years and six months from the malpractice, or from the end of continuous treatment for the same condition. Cancer misdiagnosis claims may run from discovery, capped at seven years. Foreign object cases: one year from discovery.
Is a bad result the same as malpractice?
No. Medicine carries risk, and a poor outcome can occur without any negligence. The case exists only where the care fell below the accepted standard and that failure caused the harm.
Is there a limit on what I can recover in New York?
No. New York does not cap medical malpractice damages.
Does this cover dental malpractice?
Yes. Dental and podiatric malpractice are governed by the same two-and-a-half-year deadline under CPLR 214-a.
What if the patient died?
A wrongful death claim has its own deadline — generally two years from the date of death (EPTL 5-4.1) — and it runs separately from the malpractice deadline. Both need to be checked.
Have your records reviewed
Vorontsov Law Firm PLLC · 1599 E. 15th St., Ste. 4, Brooklyn, NY 11230
Related: Personal Injury
