A successful Queens medical malpractice claim is just predicated on the merits of the case. In fact, it must start with a timely and proper filing. Without this, the case could be dismissed before it ever gets underway.
This is especially critical in New York, one of only a handful of states in the country that does not have a “discovery rule.” What this means is that the time in which the victim of medical malpractice has to take action ends 2.5 years from the time the harm occurred. In the case where the defendant is a municipally-owned hospital, the statute of limitations expires after just 15 months.
There has been much controversy over this short time-frame, and some legislators have sought to change it. As a recent New York Daily News feature pointed out, there have been some cases in which the statute of limitations runs out before the affected party even realizes there has been a medical mishap or injury.
Because the statutes are applied literally and strictly, it’s very important that as soon as you become aware of even a possible injury, you immediately consult with an attorney who can help you determine whether you have a claim. Even if you are still piecing together exactly what happened and aren’t sure if the hospital or doctor is at fault, it’s in your best interest to inquire sooner rather than later.
Equally important, is that the paperwork be filed properly. This is where choosing your medical malpractice lawyer wisely comes into play.
A recent case reviewed by the Kansas Supreme Court reversed an earlier ruling that dismissed a case because the personal injury plaintiff had failed to follow proper notification procedures during the discovery process. Although the case of Fisher v. DeCarvalho was ultimately allowed to move forward, it almost wasn’t and it illustrates how a technicality in improper filing can trip up the entire proceedings.
Here, the plaintiff was attempting to initiate a medical malpractice claim against a doctor following an arthroscopic procedure on his right knee. However, the court summons was sent via unrestricted certified mail to the doctor’s business address. Per the state law in Kansas, such filings can only be sent to a defendant’s business address if certain criteria are met – and they were not in this case.
Still, the doctor personally received the complaint and filed a formal response. However it was after this that he filed a motion to dismiss, on the grounds that there had been an insufficiency of process.
The district court ruled that the plaintiff failed to substantially comply with statutory requirements for service of process, and dismissed the case with prejudice.This decision was affirmed by the court of appeals, but later reversed by the state supreme court, which found that though the summons was statutorily inadequate, the plaintiff should have been given 90 days to correct it – which she was not granted by the lower court.
In New York state, under N.Y. SCP Law 307, service of the process is narrowly defined and must be carried out to the letter in order for the lawsuit to proceed accordingly.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Fisher v. DeCarvalho, December 2013, Kansas Supreme Court
More Blog Entries:
Brooklyn Medical Malpractice Lawsuit Heard Following Botched Surgery, Dec. 15, 2013, Queens Medical Malpractice Lawyer Blog