The Bad Doctors’ Loophole April 19, 2016.

The state of New York has an odd legal loophole that has allowed doctors who make big mistakes in medical practice to do so without the same accountability as they have in other states. Thanks to the wording of a specific code section in New York’s state laws, the time period in which a patient or his or her loved ones can bring forward a legal case for accountability is extremely truncated. A proposed legislative revision had made its way through the entire state government only to be killed at the last minute under a technical rule avoiding a vote in the state Senate. As a result, New Yorkers must still run the risk of being serious injured or killed by their doctors with little recourse.

A Real Life Case

Take the example of Lavern Wilkinson. She had a form of lung cancer that could have been treated. However, doctors failed to catch the mass on her x-rays three years earlier. By the time it was identified, the cancer ended up killing Ms. Wilkinson. Her family sued under New York law, but they were unable to file the case because the statute of limitations, two and half years from the error made, not the discovery of that error, had already expired. In comparison, 44 other states in the union have the statute of limitations start from the time of the mistake’s discovery.

Hospital Accountability Limited

Hospitals already have multiple protections that create barriers to their performance statistics being made fully public. However, at least 44,000 patients annually are killed due to avoidable medical errors in treatment, and the figure is assumed to be ten times higher. Moreover, this statistic does not include those who live on with avoidable injuries. Sepsis, infections, misplaced materials and instruments, misdiagnosis and bad surgeries all contribute.

Complaints Pile Up, Hard to Prove

The proposed change to New York’s law to make it more consistent with that of other states was opposed by the health and hospital industry on the grounds that it would trigger more lawsuits for medical malpractice. While that might be the case, it would also likely have had an improved effect on preventing mistakes in the first place – an end result that clearly would have reduced related lawsuits, too.

It’s also important to note that medical malpractice as a legal cause is not easy to prove, even when allowed within time limits. Only one percent of medical errors in 2013 turned into full blown litigation cases. Of 7,400 complaints filed in New York against doctors annually, the average number of cases sanctioned is well under 300. Finally, those who do win a malpractice case in New York don’t see astronomical judgments. The median recovery is between $400,000 and $630,000.

If you think you or a loved one has been impacted by a doctor’s mistake, do the following:

  • Collect as much information and treatment documents as possible.
  • Make a list of all medical contacts, witnesses, and parties involved.
  • Call an attorney to find out your state’s rights for patients and family immediately.

Ohio Statute of Limitations on Medical Malpractice Claims

How long do you to bring a claim for malpractice in Ohio, if a doctor, hospital or other caregiver caused you harm? Per current law (as of November 2015), you have one year to file a claim.

That "clock" can start from different dates, however, including:

  • The date of the malpractice incident itself (e.g. when a botched surgery occurred)
  • The date you discovered the injury from the malpractice. This may be different from the first date. For instance, you might discover two weeks after an operation that the surgeon left a sponge in an incision. The Ohio Supreme Court calls this moment of recognition a "cognizable event."
  • The date you end your relationship with the treating physician who caused the malpractice. (The law ideally wants the doctor to be able to fix problems that he or she caused.)
  • If a child has been injured by medical malpractice, the "ticking clock" doesn’t begin until the child turns 18 years old.

Don’t delay. Waiting could mean losing a right for recovery forever.