If a person dies due to inadequate medical care, the person’s loved ones may still be able to pursue a claim against the negligent medical providers. There are certain procedural requirements that must be complied with in pursuing a medical malpractice claim following the death of a loved one, and the claim must be pursued in a timely manner.
Recently, a case ruled on by a New York court illustrated the dangers of failing to pursue a claim, as the plaintiffs lost the right to pursue damages due to a delay in substituting the appropriate party. If you or a loved one suffered damages due to inadequate medical care, it is essential to retain a trusted Syracuse medical malpractice attorney as soon as possible to avoid waiving your right to recover.
Allegedly, the plaintiff sued the defendant nursing and rehabilitation center for medical malpractice and violations of the Public Health Law arising out of nursing home negligence that occurred in 2013. The plaintiff’s decedent died on September 30, 2013. The plaintiff did not institute her lawsuit until April 6, 2018, which was two years after the passing of the applicable statute of limitations. The defendant filed a motion to dismiss the action as untimely.
It is reported that the plaintiff previously filed an action arising out of the same alleged malpractice and violations of Public Health Law, that was commenced on August 18, 2015. Six months prior to the filing of the subject lawsuit the first lawsuit was dismissed for failure to substitute. The plaintiff argued that the subject action was timely pursuant to CPLR 205(a), which allows a party to commence a new action within six months of the dismissal of an action arising out of the same harm, under certain circumstances. A failure to prosecute is specifically excluded from the six-month extension provided by CPLR 205(a).
A Dismissal Due to Failure to Substitute Constitutes Neglect to Prosecute
On review, the court analyzed whether the dismissal of a claim for failure to substitute constitutes a failure to prosecute. The court noted that the failure to prosecute exclusion applies when the neglect to prosecute is the basis for the dismissal. The court clarified that a plaintiff cannot reinstate an action following a dismissal for failure to prosecute, regardless of whether the dismissal was explicitly based on failure to prosecute of another provision allowing for dismissal due to delay or failure to comply with discovery orders. Further, the court stated that the New York courts had repeatedly held that a failure to substitute in a timely manner may fall within the failure to prosecute exception in certain cases. Here, the court was not persuaded by the plaintiff’s argument that the exception should not apply, as the record showed a lack of effort on the plaintiff’s part to obtain the appropriate documents needed to proceed with the case. As such, the court granted the defendant’s motion.
Confer with a Seasoned Syracuse Medical Malpractice Attorney
If you or a loved one suffered harm due to inadequate medical care, it is important to confer with a skilled Syracuse medical malpractice attorney as soon as possible to discuss your case. At DeFrancisco & Falgiatano our skilled attorneys will analyze the facts of your case and develop a plan to help you in your pursuit of damages. You can reach us at 315-479-9000 or through our form online to schedule a free and confidential conference.
More Blog Posts:
Court Affirms New York Jury’s Finding that Doctor’s Negligence did not Cause the Alleged Harm, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, January 14, 2019