NY Statute of Limitations for Birth Injuries and Infant Tolling

When a birth injury occurs, the immediate focus is rightly on medical care and the child’s wellbeing. Legal deadlines may be the last thing on anyone’s mind. But understanding New York’s statute of limitations for birth injury cases matters because these deadlines are strict, and missing them can mean losing the right to pursue compensation entirely.

New York has specific rules for medical malpractice cases involving children. These rules are more generous than those for adults, but they’re not unlimited. There are caps, exceptions, and nuances that every family should understand.

How Long Do You Have to File a Birth Injury Lawsuit in New York?

In New York, medical malpractice lawsuits, including those involving birth injuries, must generally be filed within two years and six months from the date of the alleged malpractice. This deadline is set by New York Civil Practice Law and Rules Section 214-a.

The clock typically starts ticking on one of two dates:

• The date when the medical error occurred (such as during labor or delivery)
• The end of continuous treatment for the same condition by the same provider

This 2.5-year window applies to most medical malpractice claims. But when the injured person is a child, New York law recognizes that it’s often unrealistic to expect a lawsuit to be filed so quickly. Birth injuries may not be fully understood right away. Families need time to focus on medical care, get second opinions, and come to terms with what happened.

That’s where infant tolling comes in.

What Is Infant Tolling Under New York Law?

“Tolling” is a legal term that means pausing or extending a deadline. In New York, CPLR Section 208 provides for infant tolling, which gives additional time to file a lawsuit when the injured person is a minor.

Under New York law, anyone under the age of 18 is legally considered an “infant” for statute of limitations purposes. This might sound odd given that we’re often talking about newborns or young children, but in legal language, “infant” simply means “minor.”

Infant tolling acknowledges a simple reality: a baby can’t file a lawsuit. And in the months and years after a birth injury, parents and caregivers are navigating diagnoses, therapies, specialists, and the daily demands of care. The law provides breathing room.

However, this extra time is not unlimited.

The 10 Year Cap on Birth Injury Medical Malpractice Claims

Here’s the critical limitation families need to understand: even with infant tolling, a medical malpractice lawsuit for a birth injury must be filed within 10 years from the date the injury occurred or from the end of continuous treatment, whichever is later.

This 10-year cap was added to New York law in 1975 as part of a broader reform aimed at addressing rising malpractice insurance costs. The goal was to ensure that medical malpractice claims were resolved in a timely manner and to provide some measure of finality for healthcare providers.

What this means in practice:

• If a birth injury happened on January 1, 2020, a lawsuit must be filed by January 1, 2030, at the absolute latest
• It doesn’t matter that the child won’t turn 18 until 2038
• The 10-year cap is absolute and applies even if the full extent of the injury wasn’t understood until later

This cap applies specifically to medical malpractice claims. Other types of personal injury claims involving minors may have different rules, but birth injury cases involving alleged medical negligence fall squarely under the malpractice statute with its 10-year limit.

When the Statute of Limitations Clock Starts Ticking

Understanding when the limitations period begins is just as important as knowing how long it lasts.

In straightforward cases, the clock starts on the date of the alleged malpractice. For a birth injury, this is often the date of delivery or a specific event during labor.

But there’s an important exception called the “continuous treatment doctrine.”

The Continuous Treatment Rule

If the same healthcare provider continues to treat the child for the same condition that resulted from the alleged malpractice, the statute of limitations doesn’t start running until that continuous treatment ends.

For example, if a doctor’s actions during delivery caused an injury, and that same doctor continues to provide ongoing care specifically for that injury, the limitations period may not begin until that treatment relationship ends.

This rule exists because it would be unrealistic to expect someone to sue their current treating physician while still under their care. It also recognizes that the full scope of an injury may not become clear until treatment has concluded.

However, the continuous treatment doctrine has specific requirements:

• The treatment must be by the same provider or medical practice
• The treatment must be for the same condition or injury
• Routine follow-up visits or unrelated care generally don’t qualify
• The treatment must be ongoing, not sporadic

Courts look carefully at whether there was truly a continuous course of treatment or just occasional appointments. The specifics matter, and landmark cases like the Borgia decision have shaped how New York courts interpret this doctrine.

Even when continuous treatment extends the starting date, the 10-year cap still applies from whenever the clock actually starts.

What Happens in Cases Involving Wrongful Death?

If a child injured at birth later dies as a result of those injuries, different rules apply.

In wrongful death cases, the statute of limitations is generally two years from the date of death. However, for cases involving infants, New York law provides that the claim must be brought within three years of death or by the date the child would have turned 21, whichever comes first.

This means that if a child dies from birth injury complications, the family has a limited window to pursue a wrongful death claim, and the standard 10-year malpractice cap may not apply in the same way.

These cases involve layered legal considerations, and the interplay between wrongful death statutes and medical malpractice tolling rules can be complex.

Parents May Have Separate Claims With Different Deadlines

It’s important to understand that the infant tolling rules apply to the child’s claim. Parents may have their own separate legal claims for damages they’ve suffered, and those claims are subject to different deadlines.

Parents might sue for:

• Medical expenses they’ve paid
• Loss of the child’s services and companionship
• Their own emotional distress

These parental claims are typically subject to the standard 2.5-year medical malpractice statute of limitations without the benefit of infant tolling. This means parents could lose their right to sue for their own damages even while the child’s claim remains viable under the 10-year cap.

For this reason, families shouldn’t assume that having ten years for the child’s claim means they have ten years for all related claims.

Special Rules for Foreign Objects Left in the Body

New York law has a specific provision for cases where a foreign object is left inside the body during a medical procedure. This is sometimes called the “foreign object rule.”

In these cases, the statute of limitations is one year from when the object was discovered or reasonably should have been discovered, whichever comes first.

While less common in birth injury cases than in other types of surgery, this rule could apply if, for example, a surgical instrument or sponge was left inside during a cesarean section.

This one-year discovery rule operates separately from the standard malpractice statute and the infant tolling provisions, adding another layer of timing considerations in specific circumstances.

Why New York Has These Specific Time Limits

Understanding the “why” behind these rules can help make sense of what might otherwise seem like arbitrary deadlines.

The 10-year cap on medical malpractice claims, even for children, wasn’t always the law in New York. It was added in 1975 during what was called a “medical malpractice insurance crisis.” Insurance companies were raising premiums dramatically or pulling out of the market entirely, and the legislature responded with several reforms aimed at bringing stability.

The 10-year limitation was part of that package. The legislative intent was to ensure the “prompt disposition of medical malpractice claims” while still giving injured children more time than adults would have.

Courts have consistently upheld this cap. The New York Court of Appeals has made clear that the 10-year period is absolute and that different tolling provisions don’t stack or extend beyond it.

From a policy perspective, this reflects a balance between competing interests:

• Injured children deserve the opportunity to seek compensation
• Medical evidence and witness memories deteriorate over time
• Healthcare providers and insurers need some degree of certainty
• Very old claims become increasingly difficult to fairly adjudicate

Whether one agrees with where the balance was struck, these are the rules that currently govern birth injury cases in New York.

Notice of Claim Requirements for Public Hospitals

An additional hurdle exists when the alleged malpractice occurred at a public hospital or involved municipal healthcare providers, such as NYC Health + Hospitals.

Before suing a public entity in New York, you must first file a “notice of claim.” This is a formal document that provides notice of the injury and the intention to sue.

The notice of claim must be filed within 90 days of the alleged malpractice.

Here’s the critical point: infant tolling does not extend the notice of claim deadline.

Even though an injured child may have up to ten years to file an actual lawsuit, the notice of claim for a case against a public hospital or municipal provider must still be filed within 90 days. This is an extremely short window, especially given that many birth injuries aren’t immediately recognized or understood.

There are procedures to request permission to file a late notice of claim, but these require court approval and are not guaranteed. The court will consider factors like:

• Whether the public entity had actual knowledge of the injury
• Whether the delay substantially prejudiced the entity’s ability to defend
• Whether there was a reasonable excuse for the delay

Families dealing with birth injuries at public hospitals face a particularly urgent timeline and should seek legal consultation quickly.

Practical Steps for Families Dealing With Birth Injuries

Given these complex rules and strict deadlines, what should families actually do?

Document Everything From the Start

Even if you’re not sure whether you have a legal claim, keep detailed records:

• Medical records, bills, and correspondence
• Names of all healthcare providers involved
• Notes about what you were told and when
• Records of the child’s symptoms, diagnoses, and treatments
• Photographs or videos that document the child’s condition
• A timeline of events as you understand them

These records become invaluable if you later decide to explore legal options, and memories fade quickly.

Understand Your Specific Timeline

The general rules outlined in this article apply broadly, but every case has unique factors that affect the applicable deadlines:

• When exactly did the injury occur?
• Was there continuous treatment, and when did it end?
• Are you considering claims against private providers, public hospitals, or both?
• Are there other potential defendants besides healthcare providers?

Getting clarity on your specific timeline is essential.

Consult With Experienced Legal Counsel Early

Medical malpractice cases, especially those involving birth injuries, are among the most complex areas of law. They require:

• Medical experts who can review records and identify deviations from the standard of care
• Knowledge of both medical and legal standards
• Resources to investigate and build a case
• Understanding of how damages are calculated for lifetime injuries

Many medical malpractice attorneys offer free initial consultations and work on contingency, meaning they don’t get paid unless they recover compensation for you.

Even if you’re not ready to pursue a lawsuit, consulting with an attorney early can help you understand your rights and preserve your options. Waiting too long can mean losing the right to pursue any claim at all.

Don’t Assume You Have More Time Than You Do

The 10-year cap might sound like a long time, but it can pass surprisingly quickly. Medical care, therapies, and the demands of daily life fill the years. Many families don’t fully understand the extent of a birth injury until the child misses developmental milestones years later.

By the time the full picture becomes clear, several years may have already elapsed. And if the injury occurred at a public hospital, the 90-day notice of claim deadline may have already passed.

Acting sooner rather than later preserves the most options.

Understanding These Rules Protects Your Child’s Rights

New York’s statute of limitations rules for birth injuries reflect an attempt to balance fairness for injured children with practical realities of the legal system. The infant tolling provision provides more time than adults would have, but the 10-year cap and other limitations mean that this time is not unlimited.

For families dealing with a birth injury, understanding these deadlines is about more than legal technicalities. It’s about preserving the ability to seek compensation that can help provide for a child’s medical care, therapies, adaptive equipment, and long-term needs.

The rules are complicated, the stakes are high, and the deadlines are strict. But knowledge of how New York’s statute of limitations works for birth injury cases is the first step in protecting your child’s legal rights while you focus on their medical needs and wellbeing.

Time is genuinely of the essence. The law provides a window, but that window will close. Understanding when it closes in your specific situation can make all the difference.