Is there any legal recourse for being misdiagnosed 9 years after the fact?

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Is there any legal recourse for being misdiagnosed 9 years after the fact?

Approximately 9 years ago my girlfriend was in a car accident. She was a passenger in a car hit by another car. The other driver was at fault. My girlfriend was sent to the hospital where she was told she had a mild concussion that would subside in a few days. At the time her rent was due and she was forced into settling for $1500. Now, years later, her dizziness is so severe that she has to use a wheelchair and cannot walk but very short distances. She cannot function, go shopping by herself, enjoy anything. Does she have any legal recourse?

Asked on March 11, 2012 under Personal Injury, New York

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Sorry to hear about your girlfriend's condition.

Unfortunately, there does not appear to be any legal recourse available to her at this late date for two reasons.

First, settlement of the auto accident case ended that case and she would not be able to sue the at-fault driver.  In order to receive her settlement check, she had to sign a release of her claim against the at-fault party.  The release prevents filing a lawsuit against the at-fault party in exchange for receiving the settlement check. 

Second, it is too late to file a medical malpractice lawsuit against the hospital where the misdiagnosis occurred because New York only has a 2 1/2 year statute of limitations in medical malpractice cases.  This means that if the lawsuit has not been filed before the 2 1/2 year statute of limitations expires, the claim is barred and unfortunately she has lost her rights forever in the matter.  This 2 1/2 year statute of limitations in NY medical malpractice cases applies in cases of misdiagnosis.


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