Under New York law, a plaintiff who wishes to pursue a medical malpractice claim arising out of a doctor’s negligent failure to diagnose and treat the plaintiff in an appropriate time frame must file a lawsuit within two years and six months of the date of the alleged harm. While certain factors, such as the doctor’s ongoing treatment of the plaintiff will toll the statute of limitations, not all treatment constitutes continuous treatment for purposes of tolling the statute. A New York appellate court recently discussed what treatment is sufficient to toll the statutory period, in a case arising out of alleged ophthalmic malpractice. If you suffered harm due to your physician’s failure to provide you with a proper diagnosis in a timely manner you should consult a trusted Syracuse failure to diagnose malpractice attorney to discuss the circumstances surrounding your harm and what damages you may be able to recover.
Factual Background of the Case
It is alleged that the plaintiff filed a medical malpractice action against the defendant ophthalmic practice and defendant ophthalmologist due to the failure to promptly diagnose and treat the plaintiff’s glaucoma. The alleged malpractice occurred on February 25, 2011, July 15, 2011, and December 6, 2013. The defendants filed a motion to dismiss the plaintiff’s case as time-barred. The trial court denied the defendants’ motion, and the defendants appealed.
Care Under the Continuous Treatment Doctrine
A defendant arguing that a plaintiffs’ medical malpractice lawsuit is barred by the applicable statute of limitations must set forth prima facie evidence that the time in which the plaintiff was required to commence his or her lawsuit has expired. If the defendant establishes the statutory period has passed, the burden shifts to the plaintiff to raise a material issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine.