In the state of New York, you can bring a case of medical malpractice against a municipal hospital within 90 days of the wrongdoing. However, what happens if these 90 days have passed and the victim wants to file a lawsuit? There are certain provisions in the law that will allow a medical malpractice victim still to file a lawsuit, but the procedure can be quite challenging and there are chances of the court not permitting the lawsuit.
In the state of New York, you can bring a case of medical malpractice against a municipal hospital within 90 days of the wrongdoing. However, what happens if these 90 days have passed and the victim wants to file a lawsuit? There are certain provisions in the law that will allow a medical malpractice victim still to file a lawsuit, but the procedure can be quite challenging and there are chances of the court not permitting the lawsuit.
Non-Timely Filing of Medical Malpractice Lawsuit
If the 90 days have elapsed from the date of wrongdoing by the municipal hospital, the victim can still petition the court to accept the case. Hence, a medical malpractice victim can seek permission from court for a late notice of claim, which is called filing an application non poton, meaning as though it was timely filed.
Confirmation by a Medical Expert
In order to get permission to file a late medical malpractice claim, there is a lengthy and challenging procedure. First, the lawyer will have to acquire and review all medical records of the client, and see if there is liability, causation, and damages. After that, the lawyer has to send these records to a medical expert, who will also have to confirm that the case has liability, causation, and damages. The medical expert has to give an affirmation saying that all the medical records were reviewed by him, and there was departure from accepted medical care, which resulted in the stated injuries.
How the Court Reviews the Application
The affirmation of the medical expert and the application is then submitted to the judge for approval. The court will start reviewing the submitted documents to find out:
- If there is confirmation from a medical expert
- There is a valid basis for proceeding further
- How long was the delay, few days, months or years
- Why was there a delay? What was the reason for the late filing of the case?
Will the Defendant Hospital be prejudiced by the Late Filing of the Case?
If the court finds that there was no valid reason for the delay, then the lawsuit cannot be filed. However, even if there is a valid reason for the delay, the court will further try to find out if the defendant hospital is being prejudiced by the late application. The hospital can claim that the doctors who treated the patient are no longer employed by the hospital. How can the hospital successfully defend the case, when the doctors who were treating the patient are no longer working in the hospital? In such instance, there is significant prejudice, and the case will not be allowed.
Therefore, when the medical malpractice victim is trying to file a lawsuit against a municipal hospital after 90 days of the wrongdoing, there are outstanding chances the lawsuit could be rejected. The acceptance or rejection of the late application will depend on circumstances of the case, the reason for the delay in filing the case, and whether the defendant hospital is being prejudiced.
