Can you sue for medical malpractice years after treatment?

Medical malpractice lawsuits, like all civil cases, can only be brought within a certain period of time. That deadline is set by a law known called a “statute of limitations.” Every state has passed these kinds of laws, with different deadlines according to the kind of case you want to file. In almost every state, there is a dedicated statute of limitations that applies to medical malpractice cases.

In this article, we will discuss whether you can sue for medical malpractice years after treatment. The short answer is, yes, you can, since most states give you two to three years to bring a claim after malpractice occurs. The longer answer is, it depends on the type of injury and the state in which the claim is brought. Below, we will go through various examples of when the "countdown" begins for purposes of the statute of limitations deadline.

The Discovery Rule

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.”

Ex.: 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 3 years after the surgery? In this example, the patient still has time to sue because New York has adopted a 1 year discovery rule. This patient actually has 1 year after discovery of the object to file a lawsuit. (Note, however, that if there is proven evidence that the plaintiff missed the statute of limitations because the object should have been discovered earlier than it was, then the case could be dismissed.)

The "Continuous Treatment" Rule

Some states have adopted the “Continuous Treatment Rule.” This means that the statute of limitations "clock" begins to run when the defendant health care provider has stopped treating the patient for the condition at issue.

Ex.: 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.

The "Infancy" Toll

Some states also extend the statute of limitations for patients who were infants and/or minors when they were harmed, for a certain number of years after treatment, or even until the patient reaches the age of majority (18 years old).

Ex.: An OBGYN injures a patient while the patient was in utero. If this happened in a state with a 10 year infancy toll, then the infant has until he or she is 10 years old to file the lawsuit.

Watch the Deadline

Why is the statute of limitations deadline so important? If you try to file your claim after the deadline has passed, the health care provider you're trying to sue us sure to make a motion to dismiss the case, and the court is certain to grant it -- unless there's a reason to extend the deadline as it applies to your case, including the exceptions we've discussed in this article.

It doesn't matter whether your claim would have been meritorious, or how egregious the medical error was. If you miss the statute of limitations window, your medical malpractice case is over before it even gets started. So, it's a good idea to turn your case over to an experienced medical malpractice lawyer well before the filing deadline.

Learn more about The Statute of Limitations in a Medical Malpractice Case.

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