Medical Malpractice

Time Limits for Filing Wrongful Death Actions

May 26, 2021

When a patient dies as a result of medical malpractice committed by a hospital or medical provider, there are two claims that the patient’s family can sue for. The first is an action for pain and suffering: a claim for the pain the patient went through as a result of the malpractice from the time when the malpractice was committed until their death. The second claim is called a wrongful death action and is an action brought for all the pecuniary (economic) damages suffered by the patient’s family members. This is based on New York’s law of intestacy, such as loss of guidance for children, decrease in inheritance, loss of services to the spouse and/or children, and/or loss of income. 

This is important as the time to sue for the two claims (pain and suffering vs. wrongful death) differs. Generally, you have exactly 2.0 years from the date of the patient’s death to bring a wrongful death claim against a hospital for medical malpractice. On the other hand, for a claim for the pain and suffering caused by a hospital’s malpractice, you have 2.5 years from the date the malpractice occurs. Importantly, in order to bring a valid wrongful death action, you must also bring a timely action for pain and suffering or the wrongful death action would be untimely. If the medical malpractice occurred several months or years before the patient’s death, then the time to bring a pain and suffering claim can expire before the Wrongful Death claim, whereas if the medical malpractice occurred right before the Patient’s death, the Wrongful Death claim might expire first.

This means that any Wrongful Death claim that is against a hospital should be brought by the earlier date of either 2.0 years from the date of the Patient’s death or 2.5 years from the date of the alleged medical malpractice. This is why it is important to retain a New York City malpractice attorney as soon as possible, so the attorneys can bring a lawsuit against the hospital/medical provider in a timely manner so the claim is not barred. This is especially true as there are numerous exceptions to the Statute of Limitations that can extend or limit the time in which you can bring a Wrongful Death action, including claims against municipal hospitals, claims against state hospitals, claims against federal clinics or VA hospitals, claims involving failure to diagnose cancer, cases where there is the continuous treatment of the same condition, cases involving infants, and others. However, there are numerous exceptions that an attorney can help you understand.

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