“Time Expired” by kermitfrosch is licensed under CC BY 2.0
If you’re a victim of medical malpractice, it might be necessary for you to file a lawsuit in order to recover your damages. The statute of limitations surrounding medical malpractice claims is actually quite complicated, since a number of factors play a role in when and how you might file. Here are some things you need to know about the statute of limitations for medical malpractice suits; however, for specific information regarding your case, you should speak with an attorney.
Limitations Vary from State to State
The statute of limitations for medical malpractice claims is different in each state, but is generally between two and three years. In some states, the statute of limitations can be as much as ten years, depending on the individual circumstances surrounding your case. A few states which may have a longer-than-average statute of limitations are:
- Alabama-2 to 4 years
- Florida-2 to 4 years
- Hawaii-2 or 6 years
- Maryland-3 or 5 years
- Minnesota-4 years in all instances
- Mississippi-2 or 7 years
- Missouri-2 or 10 years
- Nevada-2 or 4 years
- North Carolina-3 to 10 years
- Virginia-2 to 10 years
In addition, some states have a very short statute of limitations period, requiring victims to file within one year after being injured. States with a one-year statute of limitations include:
- California (for certain types of medical malpractice, others have a statute of limitation of up to three years)
- Kentucky
- Louisiana
- Tennessee
Ohio is one state in which the statute of limitations may be very short or somewhat longer than average. The statute of limitations for medical malpractice in the Buckeye State is between one and four years, depending on the circumstances of your case.
When does Time Begin?
One of the most frequently-asked questions medical malpractice attorneys get involves when the clock actually starts ticking. In most cases, this time begins on the actual date of injury, provided it is immediately obvious. When the injury is not immediately apparent, the statute of limitations instead may begin whenever you first become aware you have been a victim of medical malpractice.
It’s important to note that some states such as New York do not allow for time to elapse between the actual incident and the date of discovery. If you reside in one of these states, you must be especially vigilant in determining whether you have been a victim of medical negligence if you are to recover damages.
Determining the Date of Discovery
Since the actual discovery of malpractice may not take place for months or even years after an incident, exactly when someone should have discovered wrongdoing is often the subject of debate in the courtroom. Attorneys for the responsible physician will try to argue that the problem should have been discovered much sooner than it actually was in an effort to have the case dismissed for not meeting the statute of limitations requirements. In determining whether or not this is the case, courts will look at a number of factors, including:
- The nature of the injury in question
- Steps the victim took to diagnose the problem
- Subsequent advice or “second opinions” given to the victim
- How the malpractice was discovered
The courts will also try to determine what a “reasonable person” would have done under the same set of circumstances if medical malpractice was suspected. If signs were present but ignored, any unreasonable delays in seeking treatment could effectively cause you to miss the filing deadline. As such, you should seek medical attention immediately if there is a reasonable cause to believe you have suffered negligence from a medical professional.
Continuous Treatment Doctrine Exception
If you live in a state that does not allow additional time for discovery, take heart. There is an exception to the law that will allow you to file suit for damages discovered later, so long as you were continuously under the care of the same physician. Known as the Continuous Treatment Doctrine, it provides for a “stay” of the statute of limitations whenever you continue with a course of treatment related to the original condition with the same physician.
An example of the Continuous Treatment Doctrine would be if you underwent surgery for a gastrointestinal disorder and subsequently received a botched operation. After the surgery, you still have stomach pain, and continue to see the same physician for your disorder. After two years of continuous treatment from the same doctor, you become fed up and decide to see a different physician. Only then do you discover you have been the victim of medical malpractice. Under the Continuous Treatment Doctrine, the statute of limitations would begin ticking with the last visit you made to the original treating physician rather than on the date the incident actually occurred.
Foreign Object Rule
Another exception that can extend the statue of limitations for medical malpractice claims is the Foreign Object Rule, which is also known as the Discovery Rule. In some states, this rule “tolls” or pauses the statute of limitations temporarily, since the patient may not have known the object was left behind. In other states, you have up to one year after discovering an object to bring a lawsuit. There is no deadline on the length of time it takes for discovering the object. Instead, courts will look at the totality of the circumstances to determine when the discovery should have reasonably taken place. Some lawsuits have been filed as long as ten years after treatment was received. Generally speaking, the shorter the time between the act and the discovery of the object, the better your odds of recovery are.
To qualify, the foreign object left inside the body must not be a “fixation device” such as a pacemaker or catheter that serves a medical purpose. Instead, it must be something that would not normally be inside the body such as a surgical instrument. You could also be required to show reasonable cause that the physician named in the suit was actually the one responsible for leaving the object behind in the first place.
Affidavit of Merit
In medical malpractice cases, simply filing a complaint at the courthouse is often not sufficient. Many states also require you to include an Affidavit of Merit along with your complaint stating that your claim meets the requirements for filing a medical malpractice suit. Around half the states have this requirement in an effort to prevent frivolous lawsuits from taking place.
An affidavit of merit must normally be completed by an expert such as a specialist, and will typically include information such as:
- How the standard of care was breached
- How that breach of care affected the patient medically
- How the victim has suffered as a result
If your state requires an Affidavit of Merit, it must be submitted when the initial complaint is filed in order for it to be considered. Since this document must usually be completed by a medical expert, this means you should allow extra time to obtain a second opinion. This is only one more reason why it is important to speak with an attorney as early as possible if you are the victim of medical malpractice.
How to Protect Yourself
You have the best odds of prevailing in a medical malpractice lawsuit when you file in a timely manner. Keeping accurate records of your medical treatment is important, as it can help you identify when an incident actually took place. If you suspect wrongdoing, obtain a second opinion as soon as possible so that you can initiate legal action immediately. Too many people delay getting a second opinion, only to find out that that in doing so, they have exceeded the statute of limitations and are barred from recovery.
If You’re a Victim
Since the laws are sometimes subject to a wide interpretation, your best bet is to contact a personal injury attorney as soon as possible in order to initiate proceedings. By doing so, you are more likely to prevail at obtaining a timely settlement.
