Statutes of Limitations are legally binding rules that establish time periods within which a lawsuit or claim must be filed. They are generally bright lines that once passed will forever bar even a clearly meritorious lawsuit. That said, there are certainly valid policy reasons for the imposition of time periods for the initiation of legal proceedings. The statute of limitations embodies the principles that the value of evidence diminishes over time and that parties to a dispute need closure, so fairness dictates that the person bringing the lawsuit act with speed and efficiency to preserve these principles.

Of course, fairness is a two way street: the time periods are generally crafted to give the party bringing the lawsuit sufficient time to learn they have been harmed. Indeed, in many States, the time periods do not begin to run until a person knows or reasonably should know that they have been injured. It is in this regard that the New York statute of limitations in medical malpractice cases is so unfair.

In malpractice claims in New York, the statute of limitations is 2 ½ years from the date of the malpractice and there is no discovery rule. This means that in many otherwise clear and valid cases, a person’s time limit to sue runs before they ever knew they were injured. We are currently representing a Central New York family in a case that graphically illustrates the unfairness of New York’s malpractice statute of limitation.

Our client is a much decorated Vietnam veteran who had a history of kidney stones. In the Fall of 2004, he developed some symptoms consistent with the redevelopment of a kidney stone. His health care provider ordered a CT scan, which showed a tiny (2 mm) kidney stone. It also showed a 2.5 cm. mass entirely within his right kidney that was suspicious for a malignancy. The doctor who read the CT scan recommended an ultrasound for a more definitive evaluation. Our client was told about the small kidney stone, but was not told anything about the mass or the need for an ultrasound, which was never ordered.

Although our client continued to be treated at that clinic regularly, nobody at the clinic recognized that he had a kidney mass that needed further work-up and nobody at the clinic ever arranged for the ultrasound that the radiologist said was necessary. Since our client was never told about the kidney mass, he had no idea that he needed any further work-up or treatment.

In August 2008, our client developed some intense back pain that testing showed was not orthopedic. Eventually, a doctor at the clinic, looking through the chart, noticed the September 2004 CT scan and realized that our client had never been sent for the recommended ultrasound. It was ordered immediately and it showed that the small 2.5 cm mass had grown to the size of a softball and had spread beyond his kidney to his ribs and liver.

It is clear that if our client had been properly followed in September 2004, his kidney tumor would have been diagnosed before it spread and his chance of a complete cure through the removal of the kidney was nearly 100%. Because of the four year delay, his tumor spread beyond the kidney and as a result, he is unlikely to survive beyond the end of this year.

Because our client was getting his medical care through the Veterans Administration from health care providers that were employed by the United States Government, he and his family have a remedy in this case. This is because the 2 year statute of limitations imposed by federal statute for claims against the government does not begin to run until the injured person knew or should have known of the injury. Here, our client did not learn of the malpractice until August 2008, so he was able to timely file his claim against the United States.

However, had he been receiving his health care not at the VA, but rather at a private clinic, our client and his family would have no legal remedy despite the obvious medical malpractice because the statute of limitations in New York, which is measured from the date of the malpractice, would have run more that a year and one half before our client ever knew that his health care providers discovered a mass in his kidney but failed to do anything about it.

New York courts have recognized the unfairness of being time-barred before the injured party ever knew of the malpractice, but have largely argued that changing the rule and imposing a discovery rule is not for the Courts, but for the Legislature. Courts have attempted to ameliorate the harshness through the judicially-created “continuous treatment doctrine”, which can, in some circumstances, extend the limitations period beyond 2 ½ years. However, that doctrine offers little or no protection to people like my client because while he was still being seen in the same medical clinic, he was not being treated by them for kidney problems. In the case of a failure to diagnose a disease like cancer, the continuous treatment rules are of little help. As a result, there are legions of reported cases where people have been time barred before they ever knew about their injury.

There is no justification for the continued application of the New York medical malpractice statute of limitations without a discovery rule. Clearly, although Courts have the inherent power to change the rule, they will not do so. Our Legislature also has been unwilling to change the rule except in the limited situation of leaving a foreign object in a person’s body after surgery. At least for our client’s family, the serendipity of being treated by the VA means that they will have a remedy. For other New Yorkers, the unfairness remains.