New York Wrongful Death Lawsuits: Controversy Over the Statute of Limitations

The statute of limitations for filing a wrongful death lawsuit in New York differs between a statutory wrongful death action and a common law conscious pain and suffering action. It's possible for one of the statutes of limitation to have run, but not the other, according to Ira Slavit, a New York attorneywhose practice represents the families of wrongful death victims. He explains how the statute of limitations works in New York and the controversy over the state's lack of a discovery rule.

New York Wrongful Death Statute of Limitations

For a wrongful death action, there is a two year statute of limitations that starts to run from the date of death; for a conscious pain and suffering action, the statute of limitations is the same and would apply if the action was for personal injuries, which time starts to run from the date of the act or omission complained of, according to Slavit. He explained:

Thus, for example, the three year statute of limitations for negligence cases and 2 ½ year statute for medical malpractice cases applies to both personal injury and death cases. The much shorter limitations of time (usually 1 year and 90 days) when you're dealing with a pain and suffering action against municipalities or municipal defendants (cities, towns, villages etc.) also applies in actions to recover for conscious pain and suffering. But the two year wrongful death still applies to municipalities; however, there is a requirement for a notice of claim to be filed much sooner than that – usually within 90 days from the date of death.

New York Discovery Rule Controversy

Slavit says that an unfair anomaly in New York State concerning the statute of limitations is that we don’t have a discovery rule in medical malpractice cases. He provided the following example:

Let's say that a woman went for a mammogram in 2005 and the results were negative. Time goes by and she has another mammogram, but this time they find something. Very often the hospital or doctor will want to go back and check previous mammograms to see the progress or what the situation was, and often what happens is that they find that the spot was on the old mammogram. However, now several years have passed since the first mammogram was incorrectly interpreted and the statute of limitations has already expired. The time period runs out even if the malpractice is not discovered.

He told us that he's been in situations where someone's family member passes away due to cancer and they'll tell him that the deceased was actually tested for the cancer six years ago, the test results were erroneously reported as normal and this information was just discovered. Unfortunately, he has to tell them that it's too late to bring an action under New York State law.

For additional information on frequently asked questions about New York wrongful death, please click here. If your family has suffered a loss, contact an experienced wrongful death attorney to discuss your situation and evaluate your options. You may be entitled to compensation for your loss.