There are strict timelines for when a person may file a medical malpractice case under New York law. While there are some exceptions to the statutory time limitations, a delay in pursuing a claim may result in a waiver of the right to recover damages. This was shown by a recent birth injury case decided by a court in the appellate division of the Supreme Court of New York, in which the court affirmed the dismissal of the plaintiff’s case in its entirety. If your child sustained injuries at birth due to negligent medical care, you should speak with a capable Rochester birth injury attorney regarding the claims that you may be able to set forth.
Factual and Procedural Background of the Case
The minor plaintiff filed a motion for leave to file a late notice of claim against the defendant, a hospital that is a public corporation. Specifically, the plaintiff sought leave to file a medical malpractice claim arising out of injuries he alleged he suffered at birth. The defendant filed a motion to dismiss. The court granted the defendant’s motion and denied the plaintiff’s motion, after which the plaintiff appealed. On appeal, the appellate court affirmed the trial court ruling.
Leave to Submit Late Notice of a Claim Under New York Law
Under General Municipal Law Section 50e, a plaintiff who wishes to assert a tort claim against a public corporation must provide the corporation with notice of the claim within 90 days of when the harm occurs. A plaintiff can seek leave to file late notice of a claim against a public corporation, but a court will only grant leave under certain circumstances. Specifically, the court will assess the cause of the delay and whether the delay caused substantial prejudice to the defendant.
In the subject case, the appellate court found that the trial court did not abuse its discretion in denying the plaintiff’s motion. Specifically, the court found that the plaintiff did not meet his burden of proof in showing that the defendant would not suffer prejudice due to the plaintiff’s nine-year delay in pursuing a claim against the defendant. The court noted that the records that were available to the defendant did not in and of themselves alert the defendant to a potential claim and thus support an argument that the defendant was not prejudiced by the delay. Furthermore, the court held that since the handwritten records from the plaintiff’s birth were destroyed in a fire, the prejudice suffered by the defendant would be substantial. Thus, the appellate court affirmed the trial court ruling.
Consult a Dedicated Birth Injury Attorney
When a child is injured at birth, it can result in lifelong physical, emotional, and financial harm. If your child suffered a birth injury, you should consult a dedicated birth injury attorney to discuss what you must prove to assert a claim for damages. The trusted attorneys at DeFrancisco & Falgiatano Personal Injury Lawyers can zealously pursue any damages that your child and you may be owed to help you repair the harm that your child suffered at birth. You can contact us through our online form or at 585-653-7343 to schedule a free and confidential meeting.