If you've been injured by a health care provider's mistake, and you're thinking about filing a medical malpractice claim, one of your first considerations is the "statute of limitations"—the law that sets a deadline on your right to have a court hear your case. Let's discuss how the statute of limitations works in the context of a medical malpractice case, the "discovery rule" as it applies to medical malpractice lawsuits and the starting of the statute of limitations "clock," and more.
Medical malpractice lawsuits, like all civil cases, are subject to a filing deadline set by a law known called a "statute of limitations." In almost every state, there is a dedicated statute of limitations that applies to medical malpractice lawsuits.
If you try to file your medical malpractice lawsuit after the statute of limitations deadline has passed, the health care provider you're trying to sue is sure to make a motion to dismiss the case, and the court is certain to grant it. If that happens, you'll have lost your right to hold the health care provider responsible for your harm.
In some instances, and depending on your state's law, a special exception might apply to your situation, effectively extending the deadline. Or there might be a valid question about when the statute of limitations "clock" started for purposes of your lawsuit.
As we touched on above, the details of your case and the specifics of the medical malpractice statute of limitations in your state might combine to effectively expand the lawsuit-filing window. So, when does the "clock" start running for purposes of the statute of limitations and the lawsuit-filing deadline it sets? Let's look at some examples.
It may be months or even years before a person who received sub-standard medical care becomes aware that they were actually harmed by it, and that they may have a valid medical malpractice claim.
For example, if a person has surgery, and a piece of sponge or a fragment of an instrument is left behind, it may not be immediately obvious. There may be no pain in the area right away, and the patient may not exhibit any symptoms for quite a while after the surgical error was actually committed.
That's why, in many states, the statute of limitations clock does not start ticking until the injury has been (or reasonably should have been) discovered by the patient. This is known as the "discovery rule."
For example, New York has a two-and-a-half year statute of limitations for medical malpractice cases, set by New York Civil Practice Law and Rules section 214-a. Let's say a surgeon in New York negligently leaves a foreign object in a patient during surgery. What if the patient discovers the object three years after the surgery, and files a medical malpractice lawsuit one month after that? In this example, the patient's lawsuit is still timely because New York has adopted a one-year discovery rule for these situations, meaning the patient actually has one year after discovery of the object to file a lawsuit.
It's important to note that in New York, as in most states where the discovery rule is followed, the statute of limitations clock usually starts ticking either:
So, let's say that our patient in the above example begins to experience significant pain at the site of the surgical procedure three years after it was done, but they decide not to go to the doctor until another 18 months have passed. If a judge decides that experiencing pain at the surgical site "would reasonably lead" someone to seek medical care, the statute of limitations would probably begin to run at the point the person should have discovered the malpractice, i.e. the date they began experiencing pain. So here, the patient's medical malpractice lawsuit would be barred by the statute of limitations.
Bottom line: If you ignore obvious symptoms and indications of a problem, you can't turn around and try to take advantage of the discovery rule later on.
Some states have adopted the "continuous treatment" rule, meaning the statute of limitations "clock" begins to run when the defendant health care provider has stopped treating the patient for the condition at issue.
For example, Texas has a two-year statute of limitations for medical malpractice cases, and has adopted the continuous treatment rule. If a doctor in Texas causes an injury during surgery, and continues to treat the patient for that injury for 4 more years, then the statute of limitations does not begin to run until the doctor has completed treatment. So, the patient in this example has a total of 6 years to file a lawsuit after the injury was inflicted.
Some states also extend the statute of limitations for patients who were infants and/or minors when they were harmed, either:
For example, let's say an OBGYN injures a patient in utero. If this happened in a state with a 10 year infancy toll, then the infant will likely have until they're 10 years old to file the lawsuit.
Finally, most states have laws that pause (or "toll") the running of the statute of limitations clock in situations where the injured patient—either at the time of the alleged malpractice, or at some point in the months or years to follow—is:
Do a little research on the law in your state, or talk to an attorney for the details.
As we've discussed, every state has its own rules when it comes to the statute of limitations for medical malpractice lawsuits, and special situations that might effectively alter the filing deadline. For details on the medical malpractice statute of limitations in your state (and other state laws that will likely affect your case), check out our collection of state-specific medical malpractice articles.
For more information on medical malpractice, including the kinds of compensation ("damages") available in these kinds of cases, check out these articles:
As you might have guessed after reading this article, it's not always easy to figure out how the statute of limitations applies to a potential medical malpractice lawsuit. And things are likely to get even more complicated from there.
There are special lawsuit filing rules for medical malpractice plaintiffs in most states, such as the filing of an affidavit of merit or the sworn testimony of a qualified expert medical witness alongside the lawsuit. Then there are mountains of medical records to sift through and thorny legal issues to navigate. All of this makes medical malpractice lawsuits unique, and uniquely complex.
Putting your case in the hands of an experienced legal professional (well before the statute of limitations filing deadline, if possible) is often a must if you want to guarantee the best result. Learn more about hiring and working with a medical malpractice lawyer.