A botched neck surgery that left permanent nerve pain

Attorney Answer

Yes, this is the kind of injury a medical malpractice claim exists for. But the claim is your mother's, not the family's, and New York gives her less time to bring it than most people expect.

Whose claim it is comes first. A malpractice claim belongs to the patient who was injured. Your mother is the one who would bring it, and the decisions in it are hers. What you can do is help — gathering records, keeping track of dates and getting her in front of the right lawyer quickly.

What a claim has to show. Three things: that the surgery departed from accepted surgical practice, that the departure caused the nerve injury, and the harm that followed. A screw through a nerve is a serious result, but a serious result is not by itself malpractice. Whether placing the hardware there fell below accepted practice is decided on medical evidence — in practice, the opinion of another surgeon who has reviewed the records. The physician now treating the neuralgia, and their notes on its cause, are central to that.

CPLR 214-a sets the period:

An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure

Two things in that sentence matter. The period is two years and six months, not the three years most people assume for an injury in New York. And it can run from the last treatment, not the procedure, where treatment for the same condition continued — so the clock depends on dates this page does not have, and it should never be counted from the day of the procedure alone.

If a city, a county or the State runs the hospital, the first deadline is far shorter. Against a public corporation, General Municipal Law § 50-e(1)(a) requires a notice of claim:

the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent

and § 50-i(1)(c) then limits the lawsuit itself to one year and ninety days from the event, though a court can sometimes allow a late notice under § 50-e(5). A State-run hospital is different again: the claim goes to the Court of Claims, and Court of Claims Act § 10(3) requires a claim, or a notice of intention to file one, within ninety days of accrual. Finding out who runs the hospital is therefore the first fact to establish.

What is at stake is substantial. An incurable pain condition reaches the future as well as the past — ongoing treatment, the effect on her daily life, and any work she can no longer do — and that is part of why these claims are worth taking to a specialist rather than handling informally with the hospital.

What you can do

1. Help your mother request her complete records: the operative report, imaging before and after surgery, every follow-up visit, and the records of the diagnosis of the nerve injury.

2. Put together the date of the surgery and the date of every later visit with the surgeon. Those dates decide which clock applies.

3. Find out who runs the hospital where the surgery was done — a private hospital, or a city, county or State one. A public hospital means a ninety-day notice.

4. Keep the notes and opinions of the doctor now treating the neuralgia. They are the medical link between the surgery and the injury.

5. Have your mother consult a New York medical malpractice attorney soon. Most will review records at no cost to decide whether there is a claim.

⏱ Time limits apply. CPLR 214-a gives two years and six months from the act or from the last continuous treatment for the same condition, and if the hospital is public, a ninety-day notice deadline under General Municipal Law § 50-e or the Court of Claims Act § 10 comes first. Which applies depends on dates and facts a page cannot see — take them to a New York medical malpractice attorney promptly, and do not count from a calendar yourself.

A New York attorney can look at the specifics quickly, and most offer a short first conversation at no cost. A few minutes on your actual facts is worth more than any general guidance, this page included.