Sent home too exhausted to walk, then a fall and head injury

Attorney Answer

Decisions about when and how to discharge a patient are medical decisions, and so is a decision not to scan a patient who comes back with a head wound. A claim that either was made carelessly is a malpractice claim — with a two-and-a-half-year clock, or a ninety-day one if the hospital is public.

Two decisions are in play here, and both are worth examining. The first is the discharge itself: letting you leave on foot, in the condition you described to staff, with transportation available and refused. The second is what happened when you came back injured: eight staples, and a scan for a head injury declined. A claim on either has to show that the decision fell below accepted medical practice and that it caused harm — and both questions are answered from the records and the opinion of another physician, not from how it felt at the time.

Your own words to the staff matter. You told them you were so exhausted you might collapse. If that is in the chart, it bears directly on whether discharging you on foot was a reasonable decision. If it is not in the chart, that is worth knowing too.

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.

One thing to do now, for your health rather than the claim: a head injury with a loss of consciousness that was never scanned is worth having evaluated, especially if you have headaches, dizziness, confusion or changes in sleep or memory. A record of that evaluation will also matter later.

What you can do

1. Get a medical evaluation for the head injury now if you have any ongoing symptoms.

2. Request your records from the hospital: the discharge summary and instructions, any notes about transportation, and the records of the emergency visit when you came back, including the request for a scan.

3. Find out who runs the hospital — private, or a city, county or State one. A public hospital means a ninety-day notice, and that may already be running.

4. Put together the dates of the admission, the discharge and the return visit.

5. Consult a New York medical malpractice attorney promptly. Most will review records at no cost.

⏱ 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.