A small metal piece of a surgical instrument is still in my leg. Can I sue the surgeon and hospital for leaving the metal in my leg after surgery even if it is years later?
Anyone thinking about filing a lawsuit over alleged medical negligence needs to be aware of a law called the statute of limitations, which places a limit on the amount of time a prospective plaintiff has to get their case started in civil court.
Every state in the U.S. has a statute of limitations on personal injury cases, and medical malpractice claims usually fall within the larger personal injury time limit (although in some states there is a special deadline for med mal cases).
Check out these State Medical Malpractice Laws, which include a breakdown of the different statutes of limitations, for details on the law in your state.
What happens if you try to get your lawsuit started after the time window set by the statute of limitations has already closed? In most cases, the court will throw your case out as being time-barred. But there are a few circumstances that could alter (and extend) the time limit set by these laws.
First, if you did not discover the harm caused by the alleged malpractice (and could not have discovered it through reasonable efforts) then the statute of limitations may not start “running” until the date on which you actually did discover the harm.
Second, if you or your child was a minor at the time the medical negligence occurred, that could affect when the “clock” started running for purposes of the statute of limitations.
Lastly, if the malpractice was caused by the caregiver’s fraud or intentional misrepresentation, or if the defendant left the state for a certain period of time, those factors could extend the medical malpractice lawsuit filing deadline.
Other exceptions to the statute of limitations may also apply. Remember that each state’s statute is different, and so are the exceptions that may come into play. Click on the link below for more information.
by: David Goguen, J.D.