My 50 year old sister went in for surgery to have an ovary removed back in 2010 and was given medication to help with her menopause. Last year she had an m.r.i. for an issue concerning her back and some cysts were noticed on her "ovary" When she mentioned to the doctor that she didn't have an ovary where the cysts were seen, she was sent to her gynecologist for further imaging where it was discovered that the ovary was in fact there. To my sisters disbelief, she was able to get the paperwork stating that the ovary was in fact removed back in 2010. The doctor tried to persuade her from having it removed cause she would go into earl menopause but she demanded it be removed. We as a family are in total shock and feel that she has to reach out to an attorney so I'm helping her reach out to someone. One attorney she spoke to mentioned that it's been over 5 years so it might be too late to file a lawsuit but she only realized that she might have this ovary only after the m.r.i. for her back last year and then just last week, having an ultrasound done.
Statute of limitations on Med Mal usually starts to run from notice of the injury would appear to be a year ago. Should have a case that hasn't expired yet. Contact a local attorney and be sure they know the injury wasn't discovered until last year.
While fraud can be used to toll the statute of limitations, assuming that the time hurdle can be overcome, what are the injuries besides the need for another surgery? If that is the extent of the injuries proceeding legally would not be economically viable.
Unfortunately there is no 'date of discovery' rule that tolls the 2 1/2 year statute of limitations. But there are exceptions, such as continuous treatment for the same condition. It will be important to find out the date of your sister's last visit with that surgeon.
The next issue: are the damages significant enough for a med mal attorney to take on the case ?
In New Jersey, there is what is commonly known as a "discovery rule" which means that the statute of limitations does not begin to run until patient knows or should reasonably know that malpractice occurred. I do not believe NY has such a rule, so you should consult a NY attorney. However, assuming the statute has not expired, damages would probably be limited to the additional surgery to remove your sister's ovary. Good luck with your potential claim
You may be surprised to hear this, but I have actually had a similar case. Unfortunately, New York does not have a discovery rule so your sister may be out of luck.
I cannot blame your sister for being upset. While the statute of limitations may have run, it may be that a lawyer can argue that the doctor committed some form of fraud, tolling it. My suggestion would be that your sister make a call or two to a medical malpractice lawyer licensed in NY. It can't hurt to make the calls, won't cost her anything but some time, and will help her determine if she might have a cause of action.
I wish you and your family the best.
Unfortunately your case is likely time barred. Unlike other states there is no discovery rule that would lengthen the statute of limitations to when you discover the injury.
