The law that applies to your claim
The departure is in the process, not the answer
Medicine involves uncertainty, and a reasonable physician can be wrong. The claim is that the diagnostic process fell below the standard: the differential was too narrow, indicated testing was not ordered, an abnormal result was never acted on, or the patient was discharged without a workup the presentation demanded.
Causation is usually the fight
It is not enough that the diagnosis was late. You must show the delay caused harm — that timely diagnosis would have led to a materially better outcome. New York permits recovery where a departure deprived a patient of a substantial possibility of a better result.
CPLR §214-a
Two years and six months, running from the act or omission rather than from discovery, subject to the continuous treatment doctrine. Cancer misdiagnosis is the exception — see failure to diagnose cancer.
The failure patterns that repeat
- Anchoring — settling on the first plausible explanation and never revisiting it as the picture changes
- The lost result — an abnormal laboratory or imaging finding returned after discharge that nobody followed up
- Discharge without a workup — chest pain sent home without cardiac evaluation, headache without imaging
- Failure to refer — a presentation outside the physician’s scope that was never escalated
- Communication failure — a specialist’s finding that never reached the treating physician or the patient
Conditions missed most often
Heart attack, particularly in women and younger patients whose presentation is atypical. Stroke, where the treatment window is measured in hours. Sepsis, where every hour of delayed antibiotics matters. Pulmonary embolism. Meningitis in children. Spinal cord compression and cauda equina, where delay converts a treatable condition into permanent paralysis. Appendicitis — discussed separately. And cancer, which has its own rules.
The record decides it
These cases are won in the chart. What the patient reported, what vital signs showed over time, what was ordered and what was not, what the differential actually listed, when results returned and who looked at them.
Request the complete record under Public Health Law §18 — the whole chart including nursing notes, triage records, order entries and the electronic audit trail. The audit trail is what shows a result being viewed, or never opened at all.
How long you have to act
- Three years from the date of the accident for most negligence claims (CPLR §214).
- Two years for wrongful death (EPTL §5-4.1).
- 90 days to serve a notice of claim where a city, county, school district, transit authority or other public body is involved (General Municipal Law §50-e), with suit generally within one year and 90 days.
The 90-day rule is the one that quietly ends otherwise strong cases. If a public entity may be involved, that is the first thing to check — not the last.
What it costs
Nothing up front. These cases are handled on contingency: there is no fee unless we win, and the consultation is free. You will be told the percentage and how expenses are handled, in writing, before you sign anything.
Common questions
My doctor missed it but I recovered fully.
Then there may be no viable claim. Malpractice requires harm caused by the departure. A delay that changed nothing, however frustrating, does not support a case — and we will tell you that.
Two doctors disagree about my diagnosis.
A difference of medical opinion is not malpractice. The question is whether the care fell below the accepted standard, which is judged by qualified experts reviewing the whole record.
I was misdiagnosed years ago.
The two-and-a-half-year period generally runs from the act, not from discovery — with important exceptions for continuous treatment and for cancer. It is worth checking rather than assuming you are out of time.
