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Who can file a medical malpractice Lawsuit? Can surviving child file for parent? What is the statute of limitation to file?

New York, NY |

Please Help. Need to know who can file a Medical Malpractice Lawsuit and what are the statute of limitation to file same, in New York.? Can surviving child file claim for a parent. (Child not a minor) Parent died due to Medical Malpractice and as surviving child (over age 30) need to know what recourse I have. Appreciate all time and interest given.

Parent death is over 3 years.

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Attorney answers 3

Best Answer

The general statute of limitations for medical malpractice in New York is 2 1/2 years from the date of the malpractice. For wrongful death claims, it is 2 years from the date of death. If the claim is against a municipality, the malpractice statute is shorter and in addition a notice of claim neeeds to be filed within 90 days after the incident. A personal representative needs to be appointed for the estate in order to file a wrongful death suit. Absent a Will naming an executor, a surviving spouse would be first in line to be appointed legal representative, surviving child would be next.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.



Thank you, This was helpful. However parent's death was over 3 years. Is there any more recourse?

Joseph Jonathan Brophy

Joseph Jonathan Brophy


Very, very unlikely. The two year time limit on wrongful death has only one exception that I know of- if the heirs were under 18 at the time of death, the statute may be extended. If the survivor was of full age, this extension would be unavailable.


If there is a will, the Executor is the person who sues. If there is no will, someone has to go into Surrogate's Court. The statute of limitation depends on whether this was a private or City/State hospital and can get a little tricky with some potential claims. I suggest you consult with an attorney who handles medical malpractice cases. If its a City/State hospital there is a Notice of Claim, Claim or Notice of Intention to Make Claim requirement depending on whose hospital it is.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at The above answer is for informational purposes only and not meant as legal advice.


I agree with both of the previous answers and can only add that given the lack of facts in your question you should immediately seek the advice of a lawyer experienced medical malpractice cases. The statute of limitations is as you have already perceived a fantastic defense for defendants. In this case, you are aware of the issue and therefore need to be even more vigilant in protecting your rights. As most medical malpractice lawyers are "contingent fee" lawyers, it should be easy and inexpensive to have your case reviewed. Best wishes.

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