A loved one died in a New York hospital and you suspect malpractice: who can bring the claim, and the deadlines that start at the death

Attorney Answer

The claim belongs to the estate, so the first step is having a personal representative appointed by the Surrogate's Court; only that person can sue. There are two claims, on two clocks: a wrongful-death claim for the family's financial losses, which must be brought within two years after the death, and the claim your loved one had for their own suffering before death, which survives them. If the hospital is a public one, such as a city or county hospital, a notice of claim is due within ninety days of the representative's appointment. And a malpractice case needs a doctor's review before it can be filed.

Who can sue. EPTL 5-4.1(1):

1. The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.

The same subdivision requires the action to be commenced within two years after the death.

What the wrongful-death claim recovers. EPTL 5-4.3(a):

(a) The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought. In every such action, in addition to any other lawful element of recoverable damages, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees, or for the payment of which any distributee is responsible, shall also be proper elements of damage.

“Pecuniary injuries” are financial losses, which is why the decedent's own pain and suffering is a separate claim.

Your loved one's own claim. EPTL 11-3.2(b):

(b) Action by personal representative for injury to person or property. No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed.

That claim is measured against the malpractice deadline in CPLR 214-a, two years and six months from the act or the last treatment in a continuous course of treatment. If your loved one died before that time ran out, CPLR 210(a) gives the representative more time:

(a) Death of claimant. Where a person entitled to commence an action dies before the expiration of the time within which the action must be commenced and the cause of action survives, an action may be commenced by his representative within one year after his death.

If the hospital is public. A claim against a public corporation, such as a city or county hospital, needs a notice of claim. For a death, General Municipal Law § 50-e(1)(a) runs the ninety days from the appointment of the representative, and § 50-i(1)(c) requires the suit within two years after the death. A court can sometimes allow a late notice, but that is not something to rely on. A claim against a hospital run by the State itself goes to the Court of Claims under different rules (Court of Claims Act § 10).

Before a suit can be filed. Under CPLR 3012-a(a), a malpractice complaint must come with the attorney's certificate that the attorney has consulted a physician and concluded there is a reasonable basis for the case. That review takes time, which is one more reason to start early.

What you can do

1. Find out whether the hospital is private, run by a city or county, or run by the State. It changes the deadlines.

2. Ask the Surrogate's Court in the county where your loved one lived about appointing a personal representative, or find out who in the family will apply.

3. Request your loved one's medical records. The representative has the clearest right to them.

4. Talk to a New York medical malpractice lawyer early, especially if the hospital is public.

⏱ Time limits apply. A wrongful-death action must be commenced within two years after the death under EPTL 5-4.1. Against a public hospital, a notice of claim is due within ninety days of the representative's appointment under General Municipal Law § 50-e(1)(a). The decedent's own claim runs under CPLR 214-a, extended by CPLR 210(a). A lawyer should work out the dates.

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.