All states have very specific deadlines for filing personal injury cases in general and medical malpractice lawsuits in particular. These deadlines are called statutes of limitations. Medical malpractice statutes of limitations are somewhat complex because most states have created a three or four part statute of limitations for medical malpractice cases. Read on to learn more.
The Standard Deadline
The first part of the statute of limitations is the standard deadline, which gives victims of medical malpractice a certain number of years -- usually anywhere from two to six years, depending on the state -- after the malpractice occurred within which to file a lawsuit.
If the victim does not file a lawsuit within this deadline, the victim loses the right to sue for medical malpractice relating to the incident in question unless he/she falls within one of the exceptions created by the second and/or third parts of the statute of limitations (we'll discuss these in detail below).
So, if the standard deadline for the statute of limitations in your state in, for example, three years, you would lose the right to sue for medical malpractice if you failed to file a lawsuit within three years from the date of the incident unless one of the following exceptions applies.
The Discovery Rule
The second part of the statute of limitations is called the discovery rule. The discovery rule is an exception to the standard deadline. States added the discovery rule because many victims of medical malpractice were losing the right to file a medical malpractice lawsuit because they did not even know that they had a medical malpractice claim until years after the standard statute of limitations expired.
The discovery rule may be phrased differently from state to state, but, in general, it allows the statute of limitations to be extended until the victim of medical malpractice either actually discovered that he/she was a victim of medical malpractice or reasonably should have discovered the malpractice. One state has described it is as follows: the date that the statute of limitations begins running is the date that the victim: 1) knew or had sufficient notice that he/she was harmed; and 2) knew or had sufficient notice of the cause of the harm.
Learn more about the Discovery Rule and the Medical Malpractice Statute of Limitations.
Example Of The Discovery Rule
Let’s say that a person underwent an operation on January 1, 2005, and, in the operation, the surgeon left a clamp inside the patient. That is clearly malpractice. But let’s say that the surgeon didn’t know about the clamp left inside the patient, and that the patient had no problems with the clamp until January 1, 2010, when he/she began having pain. The patient had an x-ray on February 1, 2010, which showed the clamp. The new doctor told the patient that day that there was a clamp inside the patient, and he/she knew that it had to have come from the 2005 operation, because that is the only operation that the patient had ever had. According to the discovery rule, the statute of limitations for malpractice from the 2005 operation began running on February 1, 2010.
But the other part of the discovery rule is that the statute of limitations begins running when the patient reasonably should have known that he/she was a victim of medical malpractice. Let’s go back to the above example, but say that the patient did not have an x-ray. Instead, let’s say that the patient went to see five doctors in 2010, and they all told him/her that they didn’t know precisely what was causing the patient’s pain, but it most likely had to do with something that probably went wrong in the 2005 operation.
In this case, the patient doesn’t know for sure that the 2005 surgeon committed malpractice, but, after seeing five doctors, has it on reasonably good authority that the surgeon probably did something wrong. Seeing five doctors who all said that the first surgeon probably did something wrong has put the patient on sufficient notice of the cause of the patient’s pain that the statute of limitations for the 2005 surgery would be deemed to have started running, if not with the first “second opinion,” then certainly by the time that the patient saw the last doctor.
The Statute of Limitations for Minor Children
The third part of the statute of limitations is the deadline for minors (children under age eighteen) or their parents or legal guardians to file a medical malpractice lawsuit. Most states have a separate deadline for minor children in medical malpractice cases.
The Statute of Repose
The fourth and final part of a typical statute of limitations is sometimes called a statute of repose. Not all states have a statute of repose in medical malpractice cases, and not all states call them "statutes of repose" when they do have them on the books.
In any case, a statute of repose imposes an absolute deadline on medical malpractice claims, regardless of when the victim discovered them. An example of a statute of repose, or a statute of repose contained within a medical malpractice statute of limitations, might be a provision that no lawsuit for medical malpractice may be filed more than ten years after the alleged act of medical malpractice.
Medical malpractice statutes of limitations are complex. If you believe that you were the victim of medical malpractice, you should contact a qualified medical malpractice lawyer immediately to learn your legal rights and make sure that you haven’t missed your state’s statute of limitations.
Find the medical malpractice statute of limitations in your state: State-by-State Medical Malpractice Laws.