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

UPDATED: Mar 11, 2012

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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


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

Answered 10 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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