How long a patient has to sue a dentist for dental malpractice is governed by the statute of limitations. The application of the statute of limitations can be confusing and a source of misunderstanding. From a legal perspective, it’s very important for dentists to know the basics and realize its complexity so they can reach out to their dental professional liability provider when such questions arise.
Below is a general guide to the statute of limitations for dental malpractice in New York. Since the application of the statute of limitations is extremely fact sensitive, the reader is encouraged to contact their professional liability provider with specific questions.
The General Statute of Limitations for Dental Malpractice (adult patients aged 18 and older) is two and a half years from the act or omission or last date of anticipated treatment.
Here are some exceptions:
For pediatric patients (Incapacity/Infancy under age 18): 10 years maximum or until the age of 20 ½ (for example, a 2-year-old has until 12 and a 15-year-old has until 20 ½).
For patients with mental incapacity: If the lack of capacity is severe enough to preclude the plaintiff from protecting his/her legal rights at the time of malpractice, there is a 10-year maximum toll from the date of the act or omission.
For foreign bodies (drill bits, etc.): The suit must be filed within one year of discovery or when the plaintiff learned of facts that would reasonably lead to discovery.
For the failure to diagnose cancer (Lavern’s Law): The action may be commenced within two years and six months of whichever is later: (1) Either when the person knows or reasonably should have known of such alleged negligent act or omission, or (2) knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided that such action shall be commenced no later than seven years from such alleged negligent act or omission.
Continuous Treatment doctrine: The law does not require a patient to disrupt treatment to begin a malpractice case. Under this doctrine, a patient may bring a malpractice case beyond the general two-and-a-half-year statute of limitations if there is a continuous course of treatment for the same condition by the same dentist/dental practice. Application of this doctrine is extremely fact sensitive and has not been applied where there is longer than a two and a half years gap in treatment, routine care or patient-initiated returns for treatment.
Dentists should also be aware of the relationship between patient treatment plans and consents and statute of limitations. Where patients miss the general statute of limitations, they sometimes try to sue for breach of contract based upon the treatment plan or consent. The breach of contract statute of limitation is 6 years.
In a treatment plan, dentists often describe what a patient can expect by the end of treatment. But dentists must be careful not to improperly guarantee any results and set patients’ expectations too high. In consent forms, dentists should have a provision stating that there are no guarantees in treatment.
If you have any questions about statutes of limitation, MLMIC policyholders can contact a team of risk management professionals 24/7 at no additional cost by calling (844) MMS-LAW1 or emailing email@example.com.