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In New York: A Recent Decision On Continuous Treatment
The statute of limitations applicable to medical malpractice cases in New York is one of the most unjust in the country. It can, and too often does, expire before victims have even the ability to know that they have been injured. That is because, other than foreign objects left in a patient's body, New York does not have a rule that the statute begins to run at the time the patient discovers, or reasonably should discover, that he or she suffered injury as a result of malpractice. Almost all other jurisdictions have such a rule, and its absence in New York has had harsh consequences for countless malpractice victims. Efforts to pass legislation to end this injustice have repeatedly come up short.
One ameliorating provision of New York's statute is its codification of the continuous treatment doctrine, which takes on added importance due to the absence of a discovery rule. Civil Practice Law & Rules (CPLR) 214-a provides that a malpractice action must be commenced within two and a half years of “the act, omission or failure complained of or the last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure ' .”
One recent Appellate Division decision on the subject of the continuous treatment doctrine in New York stands out as meriting extended discussion.
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