Medical Malpractice Statute of Limitations
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What Is a Statute of Limitation?
A statute of limitation is a law which imposes a time limit for filing certain types of lawsuits. Generally, they require that lawsuits be filed within a few years after the alleged injury occurred. Otherwise, you will lose your right to a legal remedy. This usually occurs after the defendant files a motion to dismiss.
Because of this fact, lawyers must be extremely diligent about keeping track of statutes of limitations for their clients’ claims; allowing a statute of limitations to run before filing a lawsuit is a very common reason for the filing of attorney malpractice claims.
What Are Medical Malpractice Statutes of Limitations?
Medical malpractice lawsuits are no exception, and they have their own statutes of limitations; however, there are a few wrinkles in this area of the law.
In the majority of lawsuits other than those for medical malpractice, the alleged injury is plainly obvious. However, in medical malpractice cases, the injury is not always apparent. In fact, it might take months or years after the negligent conduct takes place before the patient is aware that anything has gone wrong. For example, a piece of equipment left in a patient during surgery can cause non-specific symptoms which start out mild, and become more severe over time. It might take a very long time before a doctor determines the exact cause of the symptoms.
Medical Malpractice Discovery Rule
If the cause of the patient’s injury is discovered after the statute of limitations has run, under the traditional rules, the patient will be unable to pursue a medical malpractice claim. As a result, many patients were treated unfairly in that they were denied any type of recovery after not having discovered their injury until several years after the negligent conduct occurred.
Because of this injustice, some states have adopted a "discovery rule" for medical malpractice statutes of limitations. Under this rule, the statute of limitations period does not begin to run until the injury is discovered, or the patient (or his or her physician) reasonably should have discovered it.
For example, suppose that a negligent doctor causes an injury which does not display symptoms for months after it occurs. Once symptoms appear, the patient begins coughing up blood. This is a serious medical problem, and should signal to the patient that something is wrong. A reasonably diligent person would visit a doctor in order to have the problem diagnosed, at which point the cause could probably be discovered. This is the point at which the statute of limitations would begin to run for that patient, since his symptoms would clue any reasonable person into the fact that something was very wrong.
Do Medical Malpractice Statutes of Limitation Vary by State?
The statute of limitations varies from state to state. Here are a few examples.
- California: 3 years from date of injury, or 1 year from date the patient knows or should have known of the injury, whichever occurs first.
- New York: 2 1/2years from the date of malpractice or from the end of continuous treatment provided by the party the patient intends to sue for a certain condition, illness, or injury. The discovery rule applies in foreign-object cases in which a doctor or other medical professional leaves a foreign object in the patient’s body. A patient may file a medical malpractice claim for this type of case within one year after discovery of the object.
- Illinois: 2 years from the date the patient knew or reasonably should have known of the injury; however, a patient cannot file a claim more than four years after the negligent act took place. Special statute of limitations for patients at the time of medical malpractice: Patients under age 18 have up to eight years to file a claim, provided that the lawsuit is filed prior to the date on which the patient turns 22.
- Texas: 2 years from the date of malpractice or from the completion of treatment; 10-year statute of repose allows a patient to file a claim up to 10 years after the negligent act.
- Florida: 2 years from the date of the negligent act, or 2 years from the time the injury was discovered or reasonably should have been discovered. However, a lawsuit cannot be filed more than 4 years after the date of the negligent conduct. An exception applies to an action filed on behalf of a minor on or before the child’s eighth birthday. If the patient can prove that discovery of the injury was prevented by fraud, then the limitations period is lengthened to 2 years from the time of discovery of the injury.
Should I Consult an Attorney?
If you think that you have been injured due to medical malpractice, it is best to consult a medical malpractice attorney immediately so that you file a lawsuit within the statute of limitations.
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Last Modified: 07-28-2014 10:45 AM PDT
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