Abstract
Medical Malpractice Limitations for New York Infants -
Time for a Change of Time?
By Eugene T. Maccarrone, J.D., CPA* and Victor D. López, J.D.
In response to the medical malpractice crisis of the 1970’s New York passed legal reforms that included Civil Practice Laws and Rules (CPLR) § 214-a allowing for a two and one-half year statute of limitations for instituting a claim for medical malpractice. This provision was part of New York’s effort to limit judgments for medical malpractice, and consequently curtail skyrocketing medical malpractice insurance premiums and costs, as well as allay fear of a decrease in willingness of medical practitioners to provide medical services. As an accommodation to infants, the CPLR contains a tolling provision: where the statute of limitations is for medical malpractice claims, the entire period of disability is the tolling period, subject to a ten year tolling limit from the date of the accrual. This appears to be a balancing of the perceived need for a short statute of limitations for bringing medical malpractice cases to help stem the malpractice crisis, and that of protecting infants, allowing them an extended time to bring claims. In certain instances this balancing succeeds in allowing the infant to pursue a medical malpractice action, either because a responsible parent or guardian timely brings an action on behalf of an infant, or because the infant comes of age within the limitation time (including as tolled) and is able to bring the action on his or her own behalf; other times the action is precluded from going forward because no action is brought on behalf of the person still in infancy, and the statute as tolled nevertheless runs before the person reaches majority by virtue of the absolute ten year limitation.
Thus, the “balance” achieved in New York’s infancy tolling scheme for medical malpractice claims can always achieve its goal of limiting malpractice claims, but may or may not achieve its goal or protecting infants due to the ten year limit on tolling. Analysis of medical malpractice statutes of limitations for infants in the other forty-nine states shows this to also be true in many other jurisdictions.
Recent data show that since the 1970s family structures have substantially changed in ways that compromise the likelihood that infants will be protected during the malpractice claims tolling period. Today many children are born to young single mothers, and it appears that the number and competency of parents traditionally relied upon to guard the welfare of their children is diminished.
If the availability of infants’ access to due process to pursue medical malpractice claims has substantially diminished, is it time to update the infancy medical malpractice tolling period to allow for a full tolling of the statute of limitations beyond infancy so that the ability of infants to pursue claims on their own will be enhanced? This paper examines the issues that relate to this question.
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