Medical Malpractice Lawsuits and the Statute of Limitations

Medical malpractice lawsuits must be filed within a certain amount of time after the patient's injury, but when does the clock start ticking?

By | Updated by David Goguen, J.D.
Get the compensation you deserve. We've helped 175 clients find Attorneys today.

There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please add a valid Email
Phone Number is required
Please add a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Description is required
By clicking "Find a Lawyer", you agree to the Martindale-Nolo Texting Terms. Martindale-Nolo and up to 5 participating attorneys may contact you on the number you provided for marketing purposes, discuss available services, etc. Messages may be sent using pre-recorded messages, auto-dialer or other automated technology. You are not required to provide consent as a condition of service. Attorneys have the option, but are not required, to send text messages to you. You will receive up to 2 messages per week from Martindale-Nolo. Frequency from attorney may vary. Message and data rates may apply. Your number will be held in accordance with our Privacy Policy.

You should not send any sensitive or confidential information through this site. Any information sent through this site does not create an attorney-client relationship and may not be treated as privileged or confidential. The lawyer or law firm you are contacting is not required to, and may choose not to, accept you as a client. The Internet is not necessarily secure and emails sent through this site could be intercepted or read by third parties.

If you've been injured by a health care provider's mistake, and you're thinking about filing a medical malpractice lawsuit, 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.

In this article, we'll 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
  • other legal rules that could effectively extend the statute of limitations deadline and give injured patients more time to seek justice for a medical treatment error.

What Is a Statute of Limitations?

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.

Why Is the Statute of Limitations Deadline So Important?

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.

Can I Still Sue for Medical Malpractice Years After Treatment?

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 effective 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.

The "Discovery Rule" in Medical Malpractice Cases

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.

The Discovery Rule and the "Reasonable" Patient

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:

  • when the patient actually discovers that malpractice occurred, or
  • when they learn facts that "would reasonably lead" to the discovery of the malpractice, meaning they should have discovered it in the eyes of the law.

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.

The "Continuous Treatment" Rule In Medical Malpractice Lawsuits

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.

"Infancy" and "Minority" Tolling for Young Patients

Some states also extend the statute of limitations for patients who were infants and/or minors when they were harmed, either:

  • for a certain number of years after the malpractice occurred, or
  • until the patient reaches the age of majority (18 years old).

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.

What Is the Medical Malpractice Statute of Limitations In My State?

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.

Getting Help With Your Medical Malpractice Lawsuit

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. You can also use the tools on this page to connect with a lawyer in your area.

Make the Most of Your Claim
Get the compensation you deserve.
We've helped 175 clients find attorneys today.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please add a valid Email
Phone Number is required
Please add a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Description is required
By clicking "Find a Lawyer", you agree to the Martindale-Nolo Texting Terms. Martindale-Nolo and up to 5 participating attorneys may contact you on the number you provided for marketing purposes, discuss available services, etc. Messages may be sent using pre-recorded messages, auto-dialer or other automated technology. You are not required to provide consent as a condition of service. Attorneys have the option, but are not required, to send text messages to you. You will receive up to 2 messages per week from Martindale-Nolo. Frequency from attorney may vary. Message and data rates may apply. Your number will be held in accordance with our Privacy Policy.

You should not send any sensitive or confidential information through this site. Any information sent through this site does not create an attorney-client relationship and may not be treated as privileged or confidential. The lawyer or law firm you are contacting is not required to, and may choose not to, accept you as a client. The Internet is not necessarily secure and emails sent through this site could be intercepted or read by third parties.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you