Unlike personal injury, the cause of birth injury isn’t that obvious and a lot harder to prove. This is due in no small part to the high level of expertise required to testify for the victim. In a birth injury case, attorneys take note of several elements that constitute medical malpractice. Below are three of the major ones.
Statute of Limitations
Statute of limitations is a very complex matter. The simple rule in New York is that a medical malpractice case against a private individual or entity must be filed within 2.5 years. A case against a municipality must be filed within 1 year and 90 days, with a notice of claim that must be filed within 90 days. A case against the state of New York (SUNY hospitals) must be filed within 2 years, with complex notice of intention to file claims and notice of claims requirements. The doctors in a SUNY hospital are usually private attending subject to the 2.5-year statute. A death case must be filed within 2 years, regardless of the defendant, but notice of claim requirements still exists. A case involving an infant must be filed within 10 years, but again, notice of claim requirements still exists. A case on behalf of an incompetent is technically tolled, but one should never rely on that. Notice of claims can be extended up to the statute of limitations on motion but it's complex and subject to the court's discretion.
If you think you have medical malpractice case, talk to an experienced medical malpractice lawyer.
Dereliction of duty can take in various forms like not being licensed, not getting a patient's informed consent, not providing a safe and clean working environment, and not doing processes according to standard. It doesn’t matter if the defendant’s inability to provide reasonable standard of care was intentional or accidental—the concept of duty (or more appropriately, failure thereof) doesn’t distinguish between both.
There exists a bit of room for error in medicine. In New York, like most states, the plaintiff must be able to prove that negligence resulted in harm when this room for error and level of risk has been exceeded. This is called causation.
For a better understanding of these elements of a medical malpractice case, talk to a birth injury lawyer.