First, some background for readers who may not be fluent in the language of "legalese": A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. There are different deadlines for different kinds of cases.
Like a lot of states, Pennsylvania has a statute of limitations that applies specifically to medical malpractice lawsuits. The Pennsylvania law says that an injured patient must file their claim within two years of the date on which the defendant health care provider committed the alleged medical malpractice. However, the "clock" for this two-year time period will be "tolled" (meaning it won’t run) until the plaintiff actually knows (or should know, in the eyes of the law) that they suffered an injury that was caused by the defendant’s malpractice.
The Pennsylvania law goes on to mandate that most medical malpractice lawsuit must be filed within seven years of the date on which the underlying medical error was allegedly committed, regardless of whether the plaintiff knew or should have known that they were injured by the defendant’s wrongdoing. But in 2019, the Pennsylvania Supreme Court held that that rule, called a "statute of repose," is unconstitutional. The court's decision means that there is now effectively no outside time limit on the filing of claims where the malpractice couldn't have been discovered soon after it occurred. (Yanakos v. UPMC, 655 Pa. 615 (2019).) Note that if you try to argue that you didn't know about the malpractice within the initial two years after it occurred, you have the burden of proving that you didn't discover—and couldn't have discovered—the health care provider's negligence any sooner than you did.
Having read all of this, you might be wondering what happens if Pennsylvania’s statute of limitations deadline has passed, but you try to file your medical malpractice lawsuit anyway. It’s a safe bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit. That’s why it’s so important to understand exactly how the Pennsylvania statute of limitations applies to your situation.
According to 231 Pennsylvania Code Rule 1042.3, a medical malpractice plaintiff (or the plaintiff's attorney) must file a signed "certificate of merit" stating that an "appropriate licensed professional" has looked at the plaintiff's claim and believes there is a "reasonable probability" that the defendant health care provider's conduct "fell outside acceptable professional standards" and caused the plaintiff's claimed harm.
This certificate must be filed along with the initial complaint (the document that lays out the plaintiff's allegations and gets the lawsuit started), or within 60 days after the filing of the complaint.
The "appropriate licensed professional" consulted for the certificate does not need to be the same medical expert who will testify on behalf of the plaintiff at trial. But the expert must have "sufficient education, training, knowledge and experience" to testify credibly and competently on the defendant health care provider's failure to treat the plaintiff in line with the acceptable medical standard of care.
To get an idea of what a certificate of merit might look like, see the form provided in 231 Pennsylvania Code Rule 1042.10.)
A number of states have legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff’s specific losses.
There is currently no cap on economic or non-economic medical malpractice damages in Pennsylvania (including on compensation for things like pain and suffering), so an injured patient is free to recover for all financial losses that can be attributed to the defendant’s malpractice. (Note: Pennsylvania does cap punitive damages, but those are rarely awarded in medical malpractice cases.)
This article provides a brief summary of some of the Pennsylvania laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Pennsylvania medical malpractice attorney will have the answers.
]]>Like a lot of states, Washington has enacted a specific statute of limitations for medical malpractice lawsuits. You can find the statute at Wash. Rev. Code § 4.16.350 (2024). Under this statute, you must file your medical malpractice case within the later of three years after the underlying malpractice was committed, or one year after you discovered (or should have discovered) that you were injured as a result of malpractice.
If you argue that you didn't learn right away that you were harmed by the defendant’s medical error, the burden is on you to prove that you didn't know—and you couldn't reasonably have known—about the wrongdoing sooner.
There are a few situations that will “toll” Washington's malpractice statute of limitations—keep the “clock” from running, in other words. If your injury is caused by a foreign object left inside your body after a medical procedure, or the medical provider commits fraud or intentionally conceals the medical error, you have one year after you learn about the fraud, concealment, or foreign object to file your lawsuit.
The statute of limitations is tolled when the injured patient is younger than 18 years old, is so disabled that they can't understand the legal proceedings, or is imprisoned and awaiting sentencing.
Finally, when any party to the dispute makes a sincere, written request for mediation before a malpractice lawsuit is filed, the statute of limitations will be tolled for one year in order to allow time for the mediation.
Washington used to have an outside time limit, called a “statute of repose,” on medical malpractice claims. This statute applied when a person argued that they didn't know they were harmed by a doctor's negligence, or that some other exception to the statute of limitations gave them more time to file. Under this statute of repose, a medical malpractice lawsuit had to be filed within eight years from the date of the malpractice or it was barred.
In Bennett v. United States, 539 P.3d 361 (Wash. 2023), the Washington Supreme Court ruled that this statute of repose violated Washington's state constitution. Even though the statute still can be found in Washington's statutory code, it can no longer be enforced.
By now you’re probably wondering what happens if you try to file your medical malpractice lawsuit after Washington’s filing deadline has passed. In that situation, the defendant will almost certainly ask the court to dismiss the case, and the court will grant the motion. Once that happens, that’s the end of your lawsuit. Get more details on the statute of limitations in medical malpractice cases.
]]>Like a lot of states, Nevada has a specific "statute of limitations" that anyone looking to file a medical malpractice lawsuit must abide by. For those who aren’t fluent in legalese, a statute of limitations is a law that sets out a strict limit on the amount of time you have to go to court and get the case started. In Nevada, that means filing not only the initial complaint but also a sworn affidavit from a qualified expert medical witness who states that your case has merit (more on this in the next section).
You can find Nevada's statute of limitations for medical malpractice lawsuits at Nev. Rev. Stat § 41A.097 (2024). For malpractice-related injuries and deaths occurring before October 1, 2023, a malpractice lawsuit must be filed within the earlier of three years from the date of the injury or one year from the date the plaintiff discovered (or should have discovered) the injury.
This limitation period was amended in 2023 by A.B. 404. For medical malpractice injuries and deaths that happen on or after October 1, 2023, a malpractice suit must be filed within the earlier of three years from the date of the injury or two years from the date the plaintiff discovered (or should have discovered) the injury.
What if Nevada’s three-year deadline has passed, but you try to file the lawsuit anyway? It’s a safe bet that the doctor or health care facility you're trying to sue will file a motion asking the court to dismiss the case, and the court will almost certainly grant the motion. If that happens, that's the end of your lawsuit, and you’ve lost the right to ask the court to provide you with a civil remedy for even the most egregious and harmful medical error. That's why it is so crucial to pay attention to the statute of limitations as it applies to your case.
The most common exception to the medical malpractice statute of limitations deadline in Nevada comes into play when the defendant doctor or health care provider "conceal[s] any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known" to the defendant. In that situation, the statute of limitations is "tolled" or stops running for as long as the concealment of the alleged malpractice continues.
Whenever a medical malpractice lawsuit is filed in Nevada's civil court system, state law says that the court "shall" dismiss the lawsuit if it is filed without an accompanying affidavit from a qualified medical expert, in which he or she:
This is just a summary of the main points of Nevada's affidavit of merit requirement. Read more details at Nev. Rev. Stat. § 41A.071 (2024).
It's important to note that when a court dismisses a medical malpractice lawsuit for failure to file an accompanying affidavit of merit, the dismissal is considered "without prejudice," which means that the plaintiff gets the chance to fix the problem, file an affidavit of merit that compiles with Nevada law, and proceed with his or her malpractice case.
Like a lot of states, Nevada has a law on the books that limits (or "caps") noneconomic damages in medical malpractice cases, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice.
Effective January 1, 2024, Nevada's cap on noneconomic damages is $430,000. (Nev. Rev. Stat. § 41A.035 (2024), as amended in 2023 by A.B. 404.) That's the maximum amount that the plaintiff may receive, regardless of the number of defendants, as compensation for noneconomic damages. This cap will increase by $80,000 each January 1 through January 1, 2028. On each January 1 after that, the cap will increase by 2.1%.
So, what are noneconomic damages? They are meant to compensate the plaintiff for the negative effects of medical malpractice that aren't easily calculable; losses that are more subjective from plaintiff to plaintiff. They include compensation for pain and suffering, inconvenience, disfigurement, and similar harm caused by the defendant's malpractice.
It's important to keep in mind that Nevada's cap on medical malpractice damages does not apply to economic damages, which are losses that include the plaintiff's past medical bills, cost of future medical care, reimbursement of lost earnings, compensation for harm to the plaintiff's ability to work because of the malpractice, and any other provable losses that can be tied to the malpractice and/or to the medical treatment that was made necessary by it.
If you're looking for more specifics on Nevada's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>After walking you through New Hampshire’s medical malpractice statute of limitations, we’ll explain the basic elements of a New Hampshire medical malpractice claim.
A statute of limitations is a law that puts a deadline on filing a lawsuit in court. The plaintiff (the party bringing the lawsuit) must, as a general rule, file suit before the limitation period expires. Every state enacts its own statutes of limitations. Different kinds of cases can have different filing deadlines.
Like many states, New Hampshire had a specific statute of limitations that applied to medical malpractice lawsuits. But the New Hampshire Supreme Court, in a case called Carson v. Maurer, 424 A.2d 825 (N.H. 1980), found that the law violated New Hampshire’s state constitution. Although the statute can still be found in the New Hampshire code (see N.H. Rev. Stat. § 507-C:4 (2024)), it’s no longer enforced.
New Hampshire’s general personal injury statute of limitations now applies to medical malpractice lawsuits. Found at N.H. Rev. Stat. § 508:4 (2024), the statute gives you three years to file your case in court. In most cases, the statute of limitations clock starts to run on the date of the malpractice.
What happens if you didn’t discover your injury (and couldn’t have discovered it, using reasonable care) on the date the malpractice happened? In that event, the statute gives you three years from the date you discover or should have discovered the malpractice to file suit. Keep in mind that the burden will be on you to prove that you didn’t discover (and couldn’t have discovered) your injury in time to file within three years from the date the malpractice happened.
Absent an exception that gives you more time to file, the statute of limitations is a claim killer. If you file after the deadline, the defendant (the party you’re suing) will ask the court to dismiss the case, and the court will have no choice but to grant that request. Stated a bit differently, if you miss the deadline, you’ll lose the right to seek compensation for your malpractice injuries.
New Hampshire law spells out the requirements for a medical malpractice claim. You’ll need expert medical witness testimony to prove each of these elements. If any element is missing, your claim will fail.
(See N.H. Rev. Stat. § 507-E:2 (2024).)
New Hampshire’s expert witness rules describe the credentials your expert must have to be allowed to testify in court. Generally speaking, that means having similar education and training, including board certification, as the doctor you’re suing. The judge will decide whether your expert meets the state’s requirements.
New Hampshire used to require that all medical malpractice claims had to be reviewed by a screening panel shortly after the case was filed in court. (See N.H. Rev. Stat. Ch 519-B (2024).) Screening was intended to quickly separate legitimate from frivolous claims and to discourage pursuit of claims that lacked merit.
Critics of the law answered that instead of deterring frivolous claims, the law simply made legitimate malpractice claims more difficult and expensive to litigate. After several years of experience with the law, New Hampshire lawmakers repealed the pretrial screening requirement, effective July 1, 2023.
Many states have put a limit, or a "cap," on the amount of compensation (what the law calls “damages”) a plaintiff can receive in a medical malpractice case. In most states with damage caps, the damages you can collect are limited to the cap amount—regardless of how serious or disabling your injuries might be.
New Hampshire used to have a medical malpractice damages cap. Like the state’s former malpractice statute of limitations, the cap statute can still be found in the New Hampshire code. (See N.H. Rev. Stat. § 507-C:7 (2024).) But in the same decision that found the malpractice statute of limitations violated the state constitution (discussed above), the New Hampshire Supreme Court declared the damage cap law unconstitutional, too. The medical malpractice cap statute is no longer enforced.
New Hampshire also used to have a damage cap on all other personal injury cases. (See N.H. Rev. Stat. § 508:4-d (2024).) In a decision called Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991), the state supreme court found that this cap statute also violated New Hampshire’s constitution. Long story short: Presently, there’s no statutory limit on the damages you can collect in a medical malpractice case.
Medical malpractice cases are among the most difficult of all personal injury claims. Many lawyers who handle other kinds of personal injury cases won’t touch malpractice suits. If you think you’ve got a New Hampshire medical malpractice case, you should contact an experienced malpractice attorney right away.
Here’s how to find a medical malpractice lawyer in your area who’s right for you and your case.
]]>
Texas law, like that of most states, limits the amount of compensation a plaintiff (the party who files a malpractice lawsuit) can receive in a medical malpractice case. What’s the likely impact of damage limits—also known as "caps"—on your medical malpractice claim? Simply stated, damage caps can reduce the value of your medical malpractice case, perhaps significantly, regardless of how severe your injuries happen to be.
We'll explain why states cap damages, what the caps mean for your malpractice claim, and review Texas' medical malpractice damage caps.
According to patients and patient rights advocates, medical malpractice damage caps exist to protect doctors, hospitals, and other health care providers from liability for the consequences of their substandard care. In addition, damage caps provide a windfall for malpractice insurance companies.
Health care providers and their malpractice insurers claim that caps are needed to protect doctors, hospitals, and other providers from astronomical medical malpractice verdicts and settlements. Without caps, they say, health care providers will be forced to leave the state because malpractice insurers will refuse to insure them.
In most successful medical malpractice cases, the plaintiff will collect compensatory damages. Compensatory damages fall into two categories.
In medical malpractice cases that don’t end in the patient’s death, Texas law caps only noneconomic damages. If the malpractice causes the patient’s death, Texas caps both noneconomic and some economic damages.
In any malpractice case that gets decided by a jury, the jurors aren’t told that Texas law caps certain damages. The jury returns a verdict and the judge then reduces the damages in line with the applicable caps.
(Learn more about the different types of damages that might be available in a medical malpractice case.)
Here are the Texas medical malpractice noneconomic damage caps. These caps apply to all medical malpractice cases, regardless of whether the malpractice causes death.
In a Texas wrongful death or survival lawsuit against a doctor or other health care provider where the death resulted from medical malpractice, there’s a second per-claimant cap of $500,000 on all damages (except as noted below). This cap gets applied after the cap on noneconomic damages.
In addition to limiting noneconomic damages, this overall damage cap also limits recovery of “exemplary” (punitive) damages, along with some economic damages. The cap applies regardless of the number of doctors or other providers who are liable for malpractice. (Tex. Civ. Prac. & Rem. Code § 74.303(a) (2023).)
The limit on economic damages doesn’t apply to past or future medical, hospital, or custodial care expenses. (Tex. Civ. Prac. & Rem. Code § 74.303(c) (2023).) But other economic damages are capped. Finally, the $500,000 cap is adjusted periodically for inflation. (Tex. Civ. Prac. & Rem. Code § 74.303(b) (2023).)
Medical malpractice cases are hard enough without having to contend with damage caps. If you’ve got a Texas medical malpractice claim, chances are that the value of your case will be limited by damage caps. You’ll be up against insurance company lawyers who know how to use the caps to their benefit. This isn’t the kind of case you want to handle on your own.
You need an experienced Texas medical malpractice lawyer on your side, someone who understands how the caps work and how to present your claims in a way that will maximize your chances of recovery. Here’s how to find an experienced malpractice attorney in your area.
]]>What is the New York statute of limitations for medical malpractice lawsuits?
First things first. For those who are new to the language of “legalese,” a “statute of limitations” is a specific kind of law that puts a strict time limit on your right to file a lawsuit in your state’s civil court system after you have suffered some type of injury or loss. There are different deadlines depending on the kind of case you’re filing.
Like many states, New York has passed a specific statute of limitations for application to medical malpractice cases: New York Civil Practice Law and Rules section 214-a.
This rule says that, starting from the day when you were injured or harmed because of a health care professional’s medical error, you have two and a half years to get your lawsuit filed in New York. However, if the malpractice occurred as part of a continuing course of treatment, the statute of limitations is "tolled" (meaning that the 30-month “clock” doesn’t start running) until the date of your last treatment.
New York uses what's known as the "discovery rule" in two specific types of medical malpractice cases:
The statute of limitations for medical malpractice cases is also tolled under some other circumstances. For instance, New York Civil Practice Law and Rules section 208 says that in cases involving plaintiffs (those filing the lawsuit) who were minor children or were insane, the time to file a lawsuit may be extended until they turn 18 or are no longer mentally disabled—but not more than 10 years after the alleged malpractice.
In the language of the law, "damages" refers to compensable harm suffered by one person, as a result of someone else's wrongdoing. In the context of a medical malpractice claim, an injured patient's damages often include:
Learn more about damages in medical malpractice cases.
Damages caps are laws that place limits on the amount of compensation an injured person can receive, even when their lawsuit is successful in court.
Most state laws limiting medical malpractice damages place a “cap” on non-economic damages only, which includes compensation for things like “pain and suffering” and the other non-financial, subjective effects of the health care provider's mistake (including loss of enjoyment of life and inability to participate in hobbies and pursue interests).
Except in a few states, there is generally no limit on measurable economic damages (such as the cost of past and future medical treatment and compensation for lost income and lost ability to earn a living). A few state legislatures have passed an umbrella cap on all forms of damages in medical malpractice cases, including compensation for the costs of long-term disability.
There are a few reasons why laws capping medical malpractice damages have passed, including the perceived need to balance large (perhaps excessive) jury awards against a doctor's ability to afford malpractice insurance and provide quality care. Plaintiff's lawyers would tell you that these caps protect the health care industry's bottom line at the expense of patients who have suffered legitimate injury at the hands of unqualified doctors.
To learn more about medical malpractice damages caps where you live, look for your state in the list of links below. If you don’t see your state on this list, that means it currently has no statutory cap on damages.
Alaska
California
Colorado
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Kansas
Louisiana
Maine
Maryland
Massachusetts
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
New Jersey
New Mexico
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
West Virginia
Wisconsin
If you're thinking about bringing a medical malpractice claim against a doctor or other health care provider, understanding how your state's laws might limit your compensation is important, but it's just a small part of a complex picture.
There are some kinds of legal claims that you might capably handle on our own, but a medical malpractice lawsuit isn't one of them. Health care providers and their medical malpractice liability insurance companies tend to dig in and fight allegations of medical negligence, and having an experienced legal professional on your side is the only way to even the playing field.
A medical malpractice lawyer (along with their network of medical experts and consultants) will have the skills and the experience to build your best case and fight for a fair result.
Learn more about hiring a medical malpractice lawyer and how it might boost your chance of a successful case.
]]>In this article, we'll look at:
A statute of limitations sets a time limit on your right to file your case in the state’s court system.
Like most states, Massachusetts has a specific statute of limitations that applies to medical malpractice lawsuits, and it can be found at Massachusetts General Laws chapter 260, section 4. The law gives an injured patient three years to get the lawsuit process started.
Usually, the three-year time frame is measured from the date that patient suffered harm as a result of the alleged medical malpractice. But under what's known as the "discovery rule," Massachusetts courts have held that the "clock" doesn't start running until:
Also, the state's highest court has held that the three-year limitations period doesn't start while the patient is receiving ongoing care from the defendant medical provider, as long as the patient doesn't actually know about the medical error and its role in harming the patient.
Despite the "discovery" rule and the continuing-treatment exceptions discussed above, Massachusetts also has a "statute of repose" for medical malpractice lawsuits. This law sets an overarching filing deadline for medical malpractice cases, declaring that they can't be filed more than seven years after the alleged medical error occurred:
The only exception to this seven-year deadline is for cases where a foreign object (like a surgical sponge or instrument) is left in the body after an invasive procedure. Although the three-year basic deadline applies in those kinds of cases, there is no outside deadline that overrides the discovery rule or the continuing-treatment exception.
If you wait too long to get your medical malpractice case started—in other words, you try to file the initial complaint after the time limit set by the law has passed—the court will probably throw your case out. In a malpractice case, that usually happens after the doctor or health care entity you are trying to sue points out that the filing deadline has passed, and they file a motion to dismiss the case.
Learn more about the statute of limitations in medical malpractice cases.
Whenever a medical malpractice lawsuit is filed in the state, Massachusetts General Laws Chapter 231, section 60B says that, within 15 days after the defendant health care provider has filed its response to the lawsuit, the plaintiff (or the plaintiff's attorney) must present an "offer of proof" to a special three-personal tribunal made up of:
This tribunal is charged with determining whether the plaintiff's evidence is enough to raise a "legitimate question" of whether the defendant health care provider was negligent in providing medical care to the plaintiff. In making this determination, the tribunal will consider all relevant medical records, treatment notes, test results, and statements from qualified medical experts.
If the tribunal finds sufficient evidence to raise a legitimate question of liability, the case proceeds to court like any other civil lawsuit.
But if the tribunal finds that the plaintiff hasn't met the burden of establishing "substantial evidence" of liability, the lawsuit can only proceed if the plaintiff files a $6,000 bond with the clerk of the court, to cover the defendant's legal fees and court costs if the plaintiff's suit is not successful. (Note: The court is free to increase the amount of the bond). And if the bond isn't posted within 30 days of the tribunal's decision, the plaintiff's medical malpractice lawsuit will be dismissed.
Like dozens of other states, Massachusetts has a law on the books that limits or "caps" certain types of medical malpractice damages (compensation, in other words) available to a plaintiff who has been successful in their lawsuit. Specifically, Massachusetts caps noneconomic damages at $500,000 in medical malpractice cases. There are exceptions to this cap, which we'll cover later.
Noneconomic damages include compensation for the injured patient's:
Unlike economic damages (like the cost of medical care and lost income), which are uncapped in Massachusetts, noneconomic damages aren’t easy to capture with a dollar figure.
Learn more about medical malpractice damages.
The Massachusetts cap on noneconomic damages in a medical malpractice case will not apply if:
If you're looking for more specifics on Massachusetts's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney.
A medical malpractice lawsuit isn't the kind of legal action you want to try taking on your own. The complexity of these cases on all fronts, combined with the level of fight you can expect from the health care provider you're trying to sue (and their malpractice insurance company) make medical malpractice lawsuits uniquely challenging.
Putting your case in the hands of an experienced legal professional 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.
]]>A statute of limitations is a law that puts a firm limit on how much time can pass before you must file a lawsuit over some type of injury or loss.
Wisconsin’s statute of limitations for filing a medical malpractice lawsuit can be found at Wisconsin Statutes section 893.55. This rule specifies that the case must be filed:
An injured patient can file a medical malpractice lawsuit until the later of the two occurrences detailed above.
If you're arguing that you didn't discover you were harmed by the defendant’s medical error within three years after it happened, keep in mind that as the plaintiff, you have the burden of proving that you did not know about that harm—and could not reasonably have been expected to discover it—earlier.
When you're relying on the discovery rule to file a medical malpractice lawsuit more than three years after the medical error happened, keep in mind that Wisconsin sets an outside filing deadline of five years after the alleged malpractice, no matter when you learned about your injury.
However, Wisconsin courts have found that this five-year "statute of repose" might be unconstitutional in some situations, so be sure to talk to an attorney if you have questions about how the deadline applies to your case.
In addition to the lawsuit-filing rules we've discussed so far, here are a few more to keep in mind.
The five-year deadline set by the "statute of repose" does not apply:
In these two situations, the patient may file the lawsuit within a year after discovering the injury (or after it should have been discovered).
Finally, when an injured patient was a young child at the time of the alleged malpractice, Wisconsin Statutes section 893.56 says that a parent or guardian may file the lawsuit within the standard time limit or before the child's tenth birthday (whichever is later).
If you file a medical malpractice lawsuit after Wisconsin’s deadline has passed, the defendant (the health care provider you’re trying to sue) will surely ask the court to dismiss the case as time-barred. If the court grants that request (as it almost certainly will), you'll have lost any right to a legal remedy for your harm. That’s why it’s crucial to pay attention to (and comply with) the medical malpractice statute of limitations.
If you plan to file a medical malpractice lawsuit (or you've already filed), Wisconsin requires that you participate in mediation with the health care provider(s) you intend to sue, in an attempt to reach a settlement before the legal case goes forward.
You must request mediation:
The mediation will take place before a neutral three-person panel of mediators. Although it's an informal process (without calling witnesses or producing evidence beyond your medical records), you can have a lawyer represent you.
Generally, the law allows 90 days for the mediation process. If you haven't reached a settlement by the end of that time, you may move ahead with your lawsuit.
Learn more about Wisconsin's Medical Mediation Panels (from the Wisconsin Court System).
There is no Wisconsin statute that sets out the requirements for proving your allegations in a medical malpractice case. Typically, however, you must:
The most important (and most contentious) issues in these cases typically revolve around whether the defendant failed to meet the appropriate standard of care. In Wisconsin (as in every state) an expert medical witness is typically required to prove these elements.
Wisconsin Statutes section 907.02 says that a qualified expert may testify at a trial when "scientific knowledge" will "assist the trier of fact," meaning the expert's testimony will help the jury in deciding whether medical malpractice occurred. (However, if it's revealed that the expert agreed to be paid for the testimony based on the outcome of the case, that testimony won't be admitted as evidence in the case.)
Expert testimony probably won't be required if the medical malpractice lawsuit hinges on "routine" issues within the jury's common knowledge (for example, if surgery was performed on the wrong body part).
Like many states, Wisconsin has a law that places a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even when a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of compensation "damages" the jury can award, regardless of the plaintiff’s actual losses.
Wisconsin lawmakers have put a $750,000 cap on noneconomic damages medical malpractice cases. The cap—which can be found at Wisconsin Statutes section 893.55(4)—applies to each occurrence of medical malpractice (no matter how many defendants were involved).
Noneconomic damages include compensation for things like:
These damages are said to be more “subjective” from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
Remember that Wisconsin does not cap economic damages in medical malpractice cases. Economic damages typically include:
This article provides a brief summary of some of the Wisconsin laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Wisconsin medical malpractice attorney will have the answers.
It's the complexity of these kinds of cases, combined with the fight you can expect from the health care provider (and their malpractice insurance company) that make medical malpractice lawsuits uniquely challenging. But putting your case in the hands of an experienced legal professional is the surest way 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.
]]>How does the MICRA damages cap affect a California medical malpractice case?
Like many states, California has a law on the books that limits the amount of money an injured patient can receive even after a jury has found that the patient’s doctor (or other health care provider) committed medical malpractice. You can find California’s take on medical malpractice damage caps in the Medical Injury Compensation Reform Act (MICRA), which was originally passed in 1975, and is codified at California Civil Code section 3333.2.
Among other things, MICRA places a cap on "noneconomic damages" in medical malpractice lawsuits. So what are noneconomic damages? They are awarded to a plaintiff to compensate for things like pain and suffering, discomfort, loss of enjoyment of life, anxiety, and even the psychological impact of scarring or disfigurement. They are called noneconomic damages because they represent the kinds of losses that cannot be easily measured by a dollar amount. (Learn more about pain and suffering in a medical malpractice case.)
One of the more controversial aspects of MICRA is that the original cap of $250,000 had no provision accounting for inflation. However, legislation signed by Governor Gavin Newsom in May 2022 increases the noneconomic damages cap for the first time since 1975, effective January 1, 2023. The new caps apply to all cases initiated on or after that date. For 2023, the caps are set at $350,000 for malpractice-related injuries that do not involve wrongful death, and $500,000 for medical malpractice that resulted in wrongful death. Beginning in 2024, the dollar amounts will be bumped up each year by $40,000 for personal injury and $50,000 for wrongful death, until 2034 when the caps reach $750,000 and $1 million, respectively. At that point the amount will be adjusted annually by two percent to account for inflation. Note that the $250,000 cap will still apply to all cases filed before January 1, 2023. (You can read the full text of the legislation (AB35) on the California Legislature's website.)
Keep in mind that California has no cap on the amount of money that an injured patient can receive as compensation for medical care (past and future) made necessary by the malpractice, nor is there a cap on lost income or impairment of the patient’s ability to earn a living because of the malpractice. These kinds of losses would be categorized as economic damages, and MICRA’s cap doesn’t affect them.
Learn more about damages in medical malpractice cases.
If you are thinking about filing a medical malpractice lawsuit in West Virginia, the first thing you need to be aware of is the statute of limitations. This is a state law that puts a strict limit on the amount of time you have to get your case started in the state’s civil court system.
West Virginia's statute of limitations for medical malpractice lawsuits against a health care provider says that this kind of case "must be commenced within two years of the date of such injury, or within two year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs."
However, the statute of limitations is one year from the date of the injury or death, or "within one year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury or death," whichever is later, if your claim is against:
In either of these situations, West Virginia law states that, "in no event shall any such action be commenced more than ten years after the date of the medical injury." This is known as a "statute of repose," and it means that if more than ten years have passed since the malpractice occurred, the lawsuit is time-barred, no matter how serious the medical error might have been, and regardless of whether the patient had a reasonable opportunity to discover that he or she was harmed by it.
Finally, the statute of limitations is "tolled"—meaning that the "clock" is stopped from running—for any time period where the defendant health care provider "committed fraud or collusion by concealing or misrepresenting material facts about the injury."
Having read all of this, you might be wondering what happens if West Virginia’s statute of limitations deadline has passed but you try to file your medical malpractice lawsuit anyway. In that scenario, it’s a safe bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit. That’s why it’s so important to comply with the statute of limitations in a medical malpractice case.
You can read the full text of West Virginia’s medical malpractice statute of limitations online at West Virginia Code section 55-7B-4.
At least 30 days prior to filing a medical malpractice lawsuit, West Virginia Code section 55-7B-6 requires the plaintiff to send a "notice of claim" to each health care provider being sued. This notice must be sent via certified mail, and it must include:
The "screening certificate of merit" is a written statement by a health care provider who qualifies as an "expert" under West Virginia civil court rules. In the statement, the medical expert must describe his or her:
Like a number of states, West Virginia has legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the plaintiff can receive, regardless of the extent of the plaintiff’s specific losses.
West Virginia puts a $250,000 per-occurrence cap, adjusted annually for inflation, on non-economic damages in medical malpractice cases. This cap bumps up to $500,000, also adjusted annually for inflation, for non-economic damages if the medical malpractice resulted in certain catastrophic damages including wrongful death, permanent and serious disfigurement, or an injury that permanently prevents the plaintiff from being able to care for him/herself and perform life-sustaining activities. For the details, see West Virginia Code section 55-7B-8.
So, what are these all-important "non-economic damages"? In any injury case, non-economic damages include compensation for things like pain and suffering, emotional distress, and loss of enjoyment of life. Non-economic damages are said to be more "subjective" from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
Remember that West Virginia does not cap economic damages in medical malpractice cases. Economic (sometimes called "special") medical malpractice damages typically consist of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the defendant’s malpractice.
This article provides a brief summary of some of the West Virginia laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced West Virginia medical malpractice attorney will have the answers.
]]>Different kinds of cases have different deadlines, and, in most states, medical malpractice cases are subject to their own specific statute of limitations. It's important to note that if you try to file a lawsuit after the statutory time limit has passed, the court will refuse to hear the case, unless an exception applies. Read on for the details of California's medical malpractice statute of limitations.
California’s statute of limitations for medical malpractice lawsuits can be found at California Code of Civil Procedure section 340.5, which states that this kind of case must be brought “within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury,” or within three years of the date of the injury, whichever comes first.
In other words, in California, once you learn that you were harmed by a health care provider’s negligence, you need to get your lawsuit filed in the state’s civil court system within a year of that discovery. And if you don’t discover that you were harmed until after more than three years have passed since the negligent act occurred, you will have lost your right to file a medical malpractice lawsuit in California.
One exception to this overall three-year deadline is cases where a foreign object—such as a medical instrument or a surgical sponge—was left in the patient’s body. In those kinds of cases, the one-year discovery deadline still applies, but there is no overall time limit. So you could bring this kind of case ten years or more after the surgical error occurred, as long as you file it within a year after you find out about the presence of the foreign object.
Another exception is when the plaintiff is younger than six years old. Even if more than three years have passed since the injury, the medical malpractice lawsuit may be filed as long as it's before the child's eighth birthday.
Also, the statute of limitations is "tolled" (meaning that the time period is paused) under certain circumstances, including when the defendant intentionally hid the malpractice or committed fraud.
Finally, it's important to take note of one more procedural hoop that California medical malpractice plaintiffs must jump through: California Code of Civil Procedure section 364 entitles the defendant healthcare provider to at least 90 days' notice of a patient's intent to file a medical malpractice lawsuit. If the plaintiff provides that notice within 90 days before statute of limitations runs out, the deadline will be extended for 90 days from when the notice was served on the defendant.
]]>In Tennessee, the standard statute of limitations for medical malpractice cases gives you only one year to get your lawsuit filed. That typically means one year from the date on which the alleged malpractice occurred, but in some cases the “clock” doesn’t start running right away. In Tennessee, if the patient’s injury is not discovered within that one-year period, the statute of limitations period beings to run on the date on which the injury is discovered, and the filing deadline is one year from that date.
You can find this law online: Tennessee Code Annotated section 29-26-116.
In Tennessee, there is also a larger deadline for medical malpractice lawsuits which says that, regardless of when or if the injury was discovered, “In no event shall any such action be brought more than three years after the date on which the negligent act or omission occurred”—meaning three years from the date on which the defendant committed the underlying medical error.
The only exceptions to this over-arching three year deadline in Tennessee are 1) when a medical malpractice case involves “fraudulent concealment on the part of the defendant,” or 2) “where a foreign object has been negligently left in a patient's body.” In those situations, the one-year lawsuit filing deadline described above applies and there is no larger deadline.
If the deadline set by the Tennessee statute of limitations has passed, but you try to file the lawsuit anyway, the doctor or health care facility you’re trying to sue will file a motion asking the court to dismiss the case, and the court will almost certainly grant the motion. So it’s critical that you pay attention to the deadline as it applies to your case, especially in Tennessee, where the one-year statute of limitations is pretty defendant-friendly.
]]>A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. There are different deadlines from jurisdiction to jurisdiction, and depending on the kind of lawsuit you want to file.
Like lawmakers in a lot of states, South Dakota legislators have passed a statute of limitations that specifically covers medical malpractice lawsuits, and it can be found at South Dakota Codified Laws section 15-2-14.1, which says: "An action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake, or failure to cure, whether based upon contract or tort, can be commenced only within two years after the alleged malpractice, error, mistake, or failure to cure shall have occurred."
As the law says, the "clock" on South Dakota’s two-year deadline starts running on the date on which the defendant’s alleged medical error was actually committed. But what if you did not discover right away that you were harmed, or you didn't know of the link between your injury and the defendant’s wrongdoing? Most states apply some version of the "discovery rule" to medical malpractice cases, but South Dakota does not. Although the specifics of the discovery rule differ from state to state, it typically extends the statute of limitations for patients who didn’t know about—and couldn’t have known about—the malpractice soon after it happened. But the Supreme Court of South Dakota has held that the filing-deadline clock always begins to run on the date the medical error occurred—not the date the patient discovered the malpractice. (Pitt-Hart v. Sanford USD Medical Center, 2016 S.D. 33 (2016).) In other words, even if you couldn’t have known about your injuries within two years after the date the malpractice occurred, South Dakota law would still prevent you from filing the lawsuit once the two-year time limit expires.
If you try to file your lawsuit after the medical malpractice statute of limitations deadline has passed, you can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that is the end of your lawsuit. So it’s crucial to pay attention to the deadline (and make your best argument as to why it should be extended).
A South Dakota medical malpractice plaintiff will need to establish complex elements such as:
South Dakota, like a lot of states, has a law on the books that places a limit or "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The effect of laws like this is that, even after a plaintiff proves that the defendant committed malpractice—and the jury reaches the same conclusion—this law limits the actual amount of damages that the plaintiff can be awarded.
In South Dakota, non-economic damages in medical malpractice cases are capped at $500,000, according to South Dakota Codified Laws section 21-3-11. This includes cases against almost any kind of health care provider you can think of, including physicians, chiropractors, optometrists, dentists, hospitals, registered nurses, physicians' assistants, and corporate employers.
It's important to understand the different kinds of medical malpractice damages, and the kinds of compensation that this law does and does not affect.
Non-economic damages are those that are meant to compensate the plaintiff for the negative effects of the malpractice that aren't so easily calculable, and at the same time are more subjective from plaintiff to plaintiff. They include compensation for pain and suffering, stress and anxiety, loss of enjoyment of life, scarring and disfigurement, and similar losses caused by the defendant's malpractice. These are the kinds of losses that are subject to South Dakota's medical malpractice damages cap.
South Dakota's cap on medical malpractice damages does not apply to economic damages, which can include payment of past medical bills, prospective payment for future medical care, reimbursement of lost income, compensation for any limitations on the plaintiff's ability to earn a living because of the malpractice, and any other provable financial losses that can be tied to the malpractice and/or to the medical treatment that was made necessary by it.
If you're looking for more specifics on South Dakota's medical malpractice laws and how they apply to your potential case, it might be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>Anyone who wants to file a medical malpractice lawsuit in South Carolina first needs to be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state’s civil court system.
You can find this law at South Carolina Code section 15-3-545, and it says that this kind of case must be filed "within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence."
In other words, you need to file the lawsuit within three years of the date on which you were actually harmed by—or could reasonably be expected to know that you were harmed by—the defendant's medical error. But once six years have passed, your right to file a medical malpractice lawsuit is lost in South Carolina, even if you didn't know (and couldn't have known) you were harmed by malpractice during that time, subject to a few rare exceptions.
The most common exception to South Carolina's overarching six-year deadline is medical malpractice cases involving "the placement and inadvertent, accidental, or unintentional leaving of a foreign object in the body," such as a medical instrument or sponge after surgery. In those cases, the lawsuit must be filed within two years from the date on which the presence of the foreign object was discovered, and the larger six-year deadline does not come into play.
If the lawsuit filing deadline has passed and you try to file the complaint anyway, you can count on the defendant (the doctor or hospital you’re suing) asking the court to dismiss the case, and the court granting the motion. If that happens, that’s the end of your lawsuit. That's why it's so important to understand and comply with the medical malpractice statute of limitations.
Before filing of a medical malpractice lawsuit in South Carolina, the injured patient (usually through his or her attorney) must:
Like many states, South Carolina has a statute on the books that places a "cap" on the amount of compensation that can be awarded to a plaintiff in a medical malpractice case. In other words, even after a plaintiff proves (and the jury agrees) that the defendant committed malpractice, this law limits the actual amount of damages that the plaintiff can receive.
Before we get to what South Carolina’s medical malpractice damages law says, let's distinguish between the two main types of damages in these kinds of cases: economic and noneconomic.
Economic damages typically consist of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the treatment error on which the malpractice lawsuit is based.
Noneconomic damages include compensation for things like pain and suffering, mental anguish, and the loss of enjoyment of life that result from the malpractice. Noneconomic damages are said to be more "subjective" from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
As in most states with damages caps, South Carolina's medical malpractice damages cap applies only to noneconomic damages. Here are the highlights and the caps for 2022 (note that the cap is adjusted for inflation each year on January 1):
You can find the full text of the law at South Carolina Code Title 15, Chapter 32. And current and historical damages caps are posted on the website of the South Carolina Revenue and Fiscal Affairs Office.
If you're looking for more specifics on South Carolina's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>In this article, we'll look at the statute of limitations filing deadline for Rhode Island medical malpractice lawsuits, who qualifies as an expert witness in these kinds of cases, and laws related to certain liability arguments.
Like lawmakers in a lot of states, Rhode Island legislators have passed a statute of limitations that applies specifically to medical malpractice lawsuits. First though, a quick refresher for readers whose "legalese" is a little rusty: a statute of limitations is a law that puts a firm limit on the amount of time you have to go to court and file a lawsuit after you have suffered some type of injury or loss. There are different deadlines depending on the kind of lawsuit you want to file.
Rhode Island's statute of limitations for medical malpractice lawsuits can be found at Rhode Island General Laws section 9-1-14.1, and it gives a potential medical malpractice plaintiff three years to get the case filed in the state's civil court system. Usually the statute of limitations starts running "from the time of the occurrence of the incident which gave rise to the action," meaning the date on which the medical error was committed.
But Rhode Island makes an exception for cases "which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action." In that situation, the three-year clock starts running at the time when "the malpractice should, in the exercise of reasonable diligence, have been discovered."
Keep in mind that if you did not discover right away that you were injured as a result of a health care provider's malpractice, as the plaintiff you have the burden of proving that you couldn’t have discovered it even through the "exercise of reasonable diligence." Only then will you be able to rely on this "discovery" exception.
Finally, what if you try to file your Rhode Island medical malpractice lawsuit after the statute of limitations deadline has passed? You can bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that is the end of your lawsuit. So it’s crucial to pay attention to the deadline.
In Rhode Island, as in most states, proving malpractice usually requires the testimony of a medical expert. So, it's important to understand who is qualified to serve as an expert witness in a medical malpractice lawsuit. That question can be answered by Rhode Island General Laws 9-19-41, which says that "only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice."
So, the Rhode Island judge presiding over the medical malpractice lawsuit will consider a number of factors in determining whether a proposed expert witness (for either side of the case) has enough experience and familiarity with the medical procedure, condition, or treatment at issue in the lawsuit to offer an "expert" opinion. That includes the proposed expert's:
Rhode Island has a few special laws related to proving medical malpractice in a civil lawsuit.
First, if the lawsuit rests on the absence of the patient's "informed consent"— the health care provider's "reasonable disclosure of all known material risks" to the patient, when it comes to a procedure or course of treatment—under Rhode Island General Laws 9-19-32, the judge will weigh all evidence and credibility of witnesses to determine whether "informed consent" is actually a valid issue. Only if the judge finds that "reasonable minds might fairly come to different conclusions" on the applicability of the issue will the jury be allowed to consider the "informed consent" argument.
Next, if the medical malpractice lawsuit rests on a "res ipsa loquitur" argument—a legal concept meaning "the medical error speaks for itself," and creating a presumption that the health care provider made some kind of mistake in treating the patient—under Rhode Island General Laws 9-19-33, the judge will weigh the evidence and the credibility of the witnesses and will only allow the jury to consider application of "res ipsa loquitur" if "reasonable minds might fairly come to different conclusions" as to whether negligence should be inferred based on the circumstances. (Note: A good example of when "res ipsa loquitor" might apply in a medical malpractice case is one where a surgical instrument was left inside a patient.)
Unlike many states, Rhode Island has not passed a law that limits (or "caps") damages in medical malpractice cases. So there is no statutory limit on the amount of money that a successful plaintiff can receive, after a jury has found the defendant health care provider(s) liable for medical malpractice.
If you're looking for more specifics on Rhode Island's medical malpractice laws and how they apply to your potential case, it could be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. If you try to file your lawsuit after the medical malpractice statute of limitations deadline has passed, you can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that's the end of your lawsuit.
Wyoming’s statute of limitations for medical malpractice cases can be found at Wyoming Statutes section 1-3-107, and it gets a little complicated, so let's look at it one piece at a time.
The first part of the statute says that a medical malpractice lawsuit must be filed within two years of the date on which the underlying medical error was committed.
Next, the statute goes on to say that, if the malpractice was "not reasonably discoverable" within those first two years, or if the plaintiff failed to discover it "despite the exercise of due diligence," then the case must be brought within two years of the date when the malpractice is actually discovered.
Finally, Wyoming's statute of limitations says that if the malpractice is not discovered until sometime during the second year of the two-year period, "the period for commencing a lawsuit shall be extended by six months." But keep in mind that if you are relying on any "discovery" portion of the statute, as the plaintiff you have the burden of proving that you did not discover—and you could not have reasonably discovered—the malpractice or injury until you actually did.
For years, Wyoming had a law on the books requiring most potential medical malpractice plaintiffs to first file a claim with the Wyoming Medical Review Panel. This requirement, was meant to discourage the filing of lawsuits "where the facts do not permit at least a reasonable inference of malpractice" and to encourage "fair and equitable disposition" of valid claims.
In 2021, though, the Wyoming legislature repealed these laws, which ended the medical review panel requirement in medical malpractice cases, effective July 1, 2022. That means the medical review panel process is no longer a prerequisite to filing a medical malpractice lawsuit in the state's courts. However, the bill states that the panel will continue to function until it has issued final decisions in all claims submitted to it prior to July 1, 2022.
See 2021 Wyoming House Bill No. 195 for the text of the legislation that repealed Wyoming's medical review panel laws.
Although injured patients no longer have to present their medical malpractice cases to a medical review panel before filing suit, they still must prove their claims in court. Wyoming Statutes section 1-12-601 states that the plaintiff must prove that the defendant (that's the health care provider or facility being sued) failed to act in accordance with:
In order to prove that the health care provider failed to meet the standard of care in your case, the testimony of a medical expert is usually required. Under Wyoming law, an expert who is "qualified as an expert by knowledge, skill, experience, training, or education" may testify in a medical malpractice case in order to help the jury understand the evidence or determine a fact at issue. (Wyoming Rules of Evidence 702 (2022).)
Unlike many states, Wyoming has not passed a law that limits (or "caps") damages in medical malpractice cases. So there is no statutory limit on the amount of money that a successful plaintiff can receive, after a jury has found the defendant health care provider(s) liable for medical malpractice.
If you're looking for more specifics on Wyoming's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>First, as a quick refresher for those who aren’t fluent in "legalese," a statute of limitations is a law that puts a firm limit on the amount of time you can let pass before going to court and filing a lawsuit over some type of injury or loss.
Like a lot of states, Oregon has a specific statute of limitations that prospective plaintiffs need to abide by if they want to file a medical malpractice lawsuit in the state’s court system.
Oregon's statute of limitations for medical malpractice lawsuits can be found at Oregon Revised Statutes section 12.110, and it says: "An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered."
In other words, you need to file the lawsuit within two years of the date on which you were actually harmed by—or should have known you were harmed by—the defendant’s medical error.
There is also an overarching deadline in Oregon that says "every such action shall be commenced within five years from the date of the treatment, omission or operation upon which the action is based." So, once five years have passed your right to file a medical malpractice lawsuit is lost in Oregon, even if you couldn’t have known you were harmed by malpractice during all that time.
One exception to Oregon’s broad five-year deadline is situations where the defendant has used "fraud, deceit or misleading representation" to hide the malpractice. In that situation, once the fraud or deceit is discovered (along with the existence of the claim), the "clock" starts running on the standard two-year deadline.
Finally, if the injured patient is under the age of 18 or "has a disabling mental condition that bars the person from comprehending rights that the person is otherwise bound to know" at the time the underlying malpractice was committed, the running of the statute of limitations "clock" is paused (or "tolled") for up to five years, or for one year after the person turns 18 or the mental disability ends, whichever occurs first. These exceptions are detailed in Oregon Revised Statutes section 12.160.
What if you try to file the lawsuit after the statute of limitations deadline has passed? You can bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case. The court will almost certainly grant the request, and that will be the end of your lawsuit. That’s why it’s crucial to pay attention to (and comply with) the medical malpractice statute of limitations.
There is no Oregon statute that sets out the proof requirements in a lawsuit alleging harm resulting from medical malpractice. But typically, the plaintiff (that's the injured patient or the patient's representative) must:
The most important (and most contentious) issues in these cases typically revolve around the standard of care and how it was breached. And in Oregon (as in every state) an expert medical witness is typically required to prove these elements.
Oregon Revised Statutes section 40.410 says that when "scientific, technical, or other special knowledge" will "assist the trier of fact"—the jury in a medical malpractice lawsuit for example—a qualified expert witness may provide an opinion on legal questions like liability (the health care provider's fault) and damages (the patient's harm).
Note that expert testimony might not be necessary in an Oregon medical malpractice lawsuit that hinges on "routine" issues within the jury's common knowledge—for example, if a surgical procedure was performed on the wrong limb, or if a medical instrument was left inside the patient.
A number of states have passed laws that "cap" the amount of compensation ("damages") that a successful plaintiff can receive even after prevailing in a lawsuit against a health care provider.
Most states cap (or limit) non-economic medical malpractice damages, which includes compensation for things like pain and suffering, emotional distress, and other more subjective losses stemming from the malpractice.
Oregon is fairly unique among states in that its damage cap only applies to noneconomic damages in wrongful death cases arising from medical malpractice. That cap is set at $500,000 under Oregon law. (See Or. Rev. Stat. §§ 31.705, 31.710 for details.)
A wrongful death case is brought by the heirs or personal representatives of the deceased, and noneconomic damages are usually available to compensate both the deceased's pre-death pain and suffering, and the loss of companionship and other emotional losses suffered by the heirs or other family members bringing the wrongful death lawsuit.
Keep in mind that Oregon has no cap on economic damages in medical malpractice cases (whether they involve wrongful death or not). So, there is no limit on compensation for medical treatment (past and future), lost income, lost earning capacity, loss of financial support, and other calculable harm caused by the defendant’s malpractice.
This article provides a brief summary of some of the Oregon laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Oregon medical malpractice attorney will have the answers.
]]>First, as a quick refresher for those who aren’t fluent in "legalese," a statute of limitations is a law that puts a firm limit on how much time can pass before you must file a lawsuit over some type of injury or loss.
The Arkansas statute of limitations for a medical malpractice lawsuit can be found at Arkansas Code section 16-114-203, which gives a prospective medical malpractice patient two years to file their lawsuit. But when does the "clock" start running? The Arkansas statute specifically says that the “date of the accrual of the cause of action"—meaning the start of the two-year period—"shall be the date of the wrongful act complained of and no other time."
So, you have very little leeway in Arkansas to "discover” that you were harmed by malpractice beyond the date on which the underlying medical error was committed. But there is a key exception to this strict two-year deadline.
In Arkansas, "where the action is based upon the discovery of a foreign object in the body"—such as a medical instrument or sponge—and that object "is not discovered and could not reasonably have been discovered" within the two-year period, the lawsuit may be filed within one year from the date when the object is or should reasonably should have been discovered, whichever is earlier.
What happens if you try to file the lawsuit after the statute of limitations deadline has passed? You can bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case, the court will almost certainly grant the request, and that will be the end of your lawsuit.
That’s why it’s crucial to pay attention to (and comply with) the medical malpractice statute of limitations.
In an Arkansas medical malpractice lawsuit, unless the defendant health care provider's error "lies within the jury's comprehension as a matter of common knowledge," the injured patient will likely need to have a qualified expert medical witness testify as to the provider's liability, according to Arkansas Code section 16-114-206.
A mistake that "lies within the jury's comprehension as a matter of common knowledge" typically is one that the jury can identify without having to rely on any special knowledge or experience (operating on the wrong body part is one example).
Any expert medical testimony must usually come from a medical professional who can provide his or her opinion on:
A number of states have legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff’s specific losses.
There is currently no cap on medical malpractice damages in Arkansas (including on compensation for things like pain and suffering), so an injured patient is free to recover for all financial losses that can be attributed to the defendant’s malpractice.
This article provides a brief summary of some of the Arkansas laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Arkansas medical malpractice attorney will have the answers.
]]>Like a number of other states, Alaska has a broad statute of limitations that applies to medical malpractice lawsuits as well as to standard personal injury claims. But first things first, in case your legalese is rusty: A "statute of limitations" limits a prospective plaintiff’s right to file a lawsuit after suffering some kind of harm. Basically, these laws set a deadline for when the case must get started—when the initial complaint must be filed in civil court, in other words.
So, what does the law say in Alaska? The standard statute of limitations as it applies to a medical malpractice lawsuit gives you two years to get your lawsuit filed, starting from the date the harm was inflicted. That typically means two years from when the alleged medical error occurred, but in some cases it can mean two years from the date on which you discover—or could reasonably have been expected to discover—that you were harmed by medical malpractice.
Of course, if you are relying on this so called “discovery” exception to the statute of limitations in Alaska, as the plaintiff you have the burden of proving that you did not discover—and could not have reasonably discovered—the existence of the claim within the two-year time limit.
In addition, under what's called a "statute of repose," Alaska law says that no medical malpractice lawsuit may be filed more than ten years after the date of the underlying medical error. That means that even if you didn't know—and couldn't have known—about the injury until more than ten years after the alleged malpractice, you're still barred from filing a lawsuit once those ten years are up. There is an exception for cases based on a foreign object (such as a surgical sponge) left in the patient's body. In that situation, the "clock" is paused until the object is discovered.
(You can read the full text of Alaska’s statute of limitations for injury lawsuits at Alaska Statutes sections 09.10.070 and 09.10.055.)
If you try to file the case after the deadline has passed, the court will almost certainly throw it out. In a malpractice case, usually what happens is the doctor or health care entity you are trying to sue points out that the statutory deadline has passed, they file a motion to dismiss the case, the court grants it, and that’s the end of the story. So, it’s crucial to pay attention to the medical malpractice statute of limitations deadline as it applies to your case.
According to Alaska Statutes section 09.55.540, in proving the case against the health care provider, an Alaska medical malpractice plaintiff will need to establish some complex elements, including:
Like the majority of states in the U.S., Alaska has passed laws that limit or "cap" the amount of compensation a medical malpractice plaintiff can receive after a successful lawsuit—one in which the defendant (the plaintiff’s doctor or other care provider) has been found liable for medical negligence, after a civil trial.
It's important to note at the outset that Alaska’s cap on medical malpractice damages doesn't apply to your economic losses stemming from the malpractice. So, you can get compensation for your past and future medical care, your lost income to date, and any measurable reduction on your ability to work and earn a living in the future due to the malpractice (as well as any other damages that can be captured by a dollar amount).
So, when do these damage caps apply? In Alaska, there is a $250,000 cap on non-economic damages in a medical malpractice case. The cap bumps up to $400,000 for non-economic damages in medical malpractice cases involving wrongful death or "severe permanent physical impairment" that is over 70 percent debilitating.
These caps are spelled out at Alaska Statutes section 09.55.549.
Your next question is probably, "What are non-economic damages?" They include compensation for a medical malpractice plaintiff’s pain and suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, and other negative effects of their injuries and of any additional medical treatment made necessary by the defendant's malpractice.
If you're looking for more specifics on Alaska's medical malpractice laws and how they apply to your potential case, it might be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>If you are thinking about filing a medical malpractice lawsuit in Oklahoma, the first thing you need to be aware of is the statute of limitations. This is a state law that puts a strict limit on the amount of time you have to get your case started in the state’s civil court system.
Now, what does the statute of limitations say? Oklahoma, like many states, has passed a statute of limitations that applies specifically to medical malpractice lawsuits. Oklahoma Statutes title 76, section 18 says "An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state . . . shall be brought within two years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence," of the existence of the case.
Keep in mind that if you did not discover right away that a medical error was committed, as the plaintiff you have the burden of proving that you couldn't have discovered it even through the "exercise of reasonable diligence."
Having read all of this, you might be wondering what happens if you try to file your medical malpractice lawsuit after Oklahoma’s statute of limitations deadline has already passed. In that situation, it’s a safe bet that the doctor or health care facility you’re trying to sue will file a legal motion asking the court to dismiss the case, the court will grant the request, and that will be the end of your lawsuit. So, it’s easy to see why it’s important to pay attention to the statute of limitations as it applies to your specific situation.
Many states, including Oklahoma, have laws on the books that require the plaintiff to use an expert witness's testimony to establish negligence, often in a document called an "affidavit of merit." However, in 2017, the state's highest ruled that the law was unconstitutional, meaning that affidavits of merit are no longer required in Oklahoma medical malpractice cases. (John v. Saint Francis Hospital, Inc., 405 P.3d 681 (2017).)
There is no Oklahoma statute that spells out exactly what injured patients must prove in their medical malpractice lawsuits. But the state's courts have held that, typically, the plaintiff must:
The most important issues in these cases typically revolve around the standard of care and how it was breached. And you'll almost certainly need the testimony of an expert medical witness to prove these elements.
Like a number of states, Oklahoma has legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff’s specific losses.
Under Oklahoma Statutes section 23-61.2, the law caps noneconomic damages—compensation for things like pain and suffering, emotional distress, and the loss of enjoyment of life that result from the defendant’s medical malpractice—at $350,000 in all civil cases seeking compensation for bodily injury. However, in 2019, the Oklahoma ruled that these caps are unconstitutional, meaning they can no longer be applied. (Beason v. I.E. Miller Services, Inc., 441 P.3d 1107 (2019).)
Note that economic damages were never subject to the state's damages cap. Economic damages typically consist of payment of past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the malpractice.
This article provides a brief summary of some of the Oklahoma laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Oklahoma medical malpractice attorney will have the answers.
]]>First, for the uninitiated, a "statute of limitations" is a law that can have a serious impact on your right to file a lawsuit. Specifically, this kind of law puts a strict limit on the amount of time you have to get your case started in your state's civil court system.
Like a lot of states, Alabama has a separate statute of limitations that applies specifically to medical malpractice lawsuits. The standard deadline is set by Alabama Code § 6-5-482, which gives you two years to get your lawsuit filed in the state’s court system, starting from the date on which the alleged malpractice was committed.
But another component of this Alabama law could extend the filing deadline beyond two years. The statute goes on to say that "if the cause of action is not discovered and could not reasonably have been discovered" within the two-year window, "then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier."
Keep in mind that if you are relying on this six-month rule, as the plaintiff you have the burden of proving that you did not discover—and could not have reasonably discovered—the existence of the claim within the two-year time limit.
Finally, despite this "discovery" exception, in Alabama there is a larger filing deadline—known as a "statute of repose"—which requires that a medical malpractice be filed no more than four years after the date on which the underlying medical error was committed, regardless of when the existence of the claim was discovered.
So, what If the statute of limitations deadline has passed and you try to file the lawsuit anyway? You can count on the defendant—that’s the doctor or health care facility you’re trying to sue—asking the court to dismiss the case. And if the court grants that request (as it almost certainly will), that’s the end of the lawsuit.
Unlike a lot of states, Alabama does not require that a medical malpractice complaint (the legal filing that starts the lawsuit) be accompanied by an "affidavit of merit" or similar document. But the Alabama Medical Liability Act (specifically, Alabama Code § 6-5-551) does require that any medical malpractice complaint include:
Besides setting out certain details in the complaint, in proving his or her case in court, according to Alabama Code § 6-5-548, a plaintiff must:
In most cases, key liability elements are established through the testimony of a qualified expert medical witness.
A number of states have legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff’s specific losses.
There is currently no cap on medical malpractice damages in Alabama (including on compensation for things like pain and suffering), so an injured patient is free to recover for all financial losses that can be attributed to the defendant’s malpractice. (Note: Alabama did have a statutory cap on the books, but it was struck down by the state's highest court.)
This article provides a brief summary of some of the Alabama laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Alabama medical malpractice attorney will have the answers.
]]>Anyone intending to file a medical malpractice lawsuit in Nebraska must pay attention to and comply with the statute of limitations, which is a law that limits the amount of time you have to get your case started in the state's civil court system.
You can find Nebraska's statute of limitations for medical malpractice lawsuits at Nebraska Revised Statutes section 44-2828, and it says that this kind of case must be filed within two years of the date on which the alleged medical error occurred, except that if the malpractice "is not discovered and could not be reasonably discovered" within that two-year time frame, "the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier." In other words, if you don’t discover the malpractice right away, the one-year "clock" starts running when you actually do learn about it, or should have discovered it, at least in the eyes of the law.
There is also a larger catch-all filing deadline (known as a "statute of repose" in legalese) in Nebraska, which says that any medical malpractice lawsuit must be filed within ten years from the date on which the medical professional’s (or facility's) alleged negligent act was committed. So, once ten years have passed, your right to file a medical malpractice lawsuit is lost in Nebraska, even if you didn't know (and couldn’t have known) that you were harmed by malpractice during that time.
Finally, if the prospective plaintiff in a medical malpractice case is under the age of 21 at the time the alleged malpractice was committed, Nebraska Revised Statutes section 25-213 says that the statute of limitations is "tolled" (meaning it doesn’t run) until that person turns 21.
If Nebraska's medical malpractice statute of limitations deadline has passed and you try to file the case anyway, you can count on the defendant asking the court to dismiss the case, and the court granting the motion. Once that happens, that’s the end of your lawsuit.
Before you can file a medical malpractice lawsuit in Nebraska's courts, the proposed complaint must be considered by a panel of experts, according to Nebraska Revised Statute 44-2840. This process serves as a prerequisite to filing a lawsuit (although panel review can be waived if the plaintiff specifically requests it).
Details of these panels—including selection of members and the procedure for challenging someone's inclusion on the panel—can be found at Nebraska Revised Statute 44-2841.
Here are some highlights of the process:
Once the panel is formed, it will consider all relevant evidence, including "medical charts, X-rays, laboratory test results, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable," according to Nebraska Revised Statute 44-2842.
After considering all evidence, Nebraska Revised Statute 44-2843 says that, within 30 days, the panel must issue a majority opinion, including as to whether:
This is just a quick summary of Nebraska's medical review panel process. For more details, read the statutes linked above, or talk with an experienced Nebraska medical malpractice lawyer.
Like a lot of states, Nebraska has a law on the books that limits the amount of compensation that a plaintiff can receive in a medical malpractice case, even after the plaintiff has been successful at trial and the jury has issued a finding that the defendant's medical negligence caused significant harm to the plaintiff.
Nebraska's damages cap is pretty unique among states. That's because most states that cap damages place limits only on one category of medical malpractice damages: non-economic damages. Non-economic damages include compensation for things like pain and suffering, loss of enjoyment of life, anxiety, emotional distress, and other subjective harm caused by the malpractice.
But in passing Nebraska Revised Statutes section 44-2825, the state legislature has placed a total cap on damages in medical malpractice cases. This includes the plaintiff's economic damages—meaning payment for past and future medical care, lost income, and future lost earnings or harm to earning capacity—as well as non-economic harm. The cap that will apply in a given case varies depending on when the underlying malpractice allegedly took place.
Another wrinkle in Nebraska's medical malpractice damages cap law is that health care providers who qualify under the state's Hospital-Medical Liability Act won't pay more than $500,000 in total damages, and any amount above that $500,000 is paid out from the state's Excess Liability Fund (up to the relevant cap number, of course).
If you have more questions about Nebraska's medical malpractice laws and how they apply to your potential case, an experienced Nebraska medical malpractice attorney will have the answers.
]]>Anyone who wants to file a medical malpractice lawsuit in North Dakota first needs to be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state’s civil court system.
Like a lot of states, North Dakota has enacted a specific statute of limitations for medical malpractice lawsuits. You can find this law at North Dakota Century Code section 28-01-18, and it says that this kind of case must be filed within two years of the date on which the underlying malpractice was allegedly committed—or alternatively, within two years of the date when the patient discovered (or should have been able to discover) that he or she was injured as a result of a medical professional or health care facility’s medical error.
It's important to note that if you are relying on the "discovery" portion of North Dakota’s two-year filing period, as the plaintiff you have the burden of proving that you did not discover—and you could not reasonably have been expected to discover—the occurrence of the underlying malpractice until you actually did.
There is also a larger catch-all filing deadline (known as a "statute of repose") in North Dakota, which says that all medical malpractice lawsuits must be filed within six years from the date on which the malpractice occurred. So, once those six years have passed, even if you didn’t know (and couldn't reasonably have known) that you were harmed by malpractice during all of that time, your right to file a medical malpractice lawsuit in North Dakota is lost.
If North Dakota's statute of limitations filing deadline has passed and you try to file the case anyway, the defendant will almost certainly ask the court to dismiss the case, and the court is very likely to grant the motion. Once that happens, that’s the end of your lawsuit. That's why it's so important to understand and comply with the medical malpractice statute of limitations.
Within three months of the filing of any medical malpractice lawsuit in North Dakota's courts, the plaintiff must file (and must also "serve" on each defendant) an affidavit in which a qualified medical expert attests to his or her support for a preliminary finding of negligence on the part of each provider named in the lawsuit.
According to North Dakota Century Code section 28-01-46, the affidavit must:
Like a number of states, North Dakota places a "cap" on the amount of compensation that is available to a plaintiff who has been successful in a medical malpractice lawsuit. In other words, even after a jury holds a defendant liable for malpractice and awards a plaintiff a certain amount of damages, this law (fair or not) kicks in to cap the actual amount that the plaintiff will end up getting.
In North Dakota, there is a $500,000 cap on noneconomic damages in medical malpractice cases. Noneconomic damages include compensation for things like pain and suffering, emotional distress, and the loss of enjoyment of life that result from the defendant’s medical malpractice. Noneconomic damages are often described as more "subjective" because they tend to vary from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
As for other medical malpractice damages in North Dakota—including compensation for losses like past and future medical bills, lost income, lost earning capacity, and other financial harm—there is no statutory limit, but any economic damages award over $250,000 may be challenged by the defendant and reviewed for "reasonableness" by the court. However, when such an award is challenged, the defendant has the burden of persuading the court that the dollar amount does not reasonably reflect the injured patient’s economic losses.
If you're looking for more specifics on North Dakota's medical malpractice laws and how they apply to your potential case, it could be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. Like most states, Mississippi has a dedicated statute of limitations for a medical malpractice lawsuit.
Mississippi Code section 15-1-36 specifies that an injured patient must file a medical malpractice claim within two years of the date on which the health care provider committed the alleged malpractice, or the date on which, with "reasonable diligence," the malpractice "might have been first known or discovered."
Keep in mind that if you are relying on this "discovery rule," as the plaintiff you have the burden of proving that you did not discover right away that the malpractice occurred, and that you could not have reasonably discovered the malpractice until you actually did.
There is a larger catch-all filing deadline for medical malpractice lawsuits in Mississippi, which says that this kind of case cannot be filed "more than seven years after the alleged act, omission or neglect occurred." This is known as a "statute of repose," and it means that no lawsuit can be filed if more than seven years have passed since the malpractice occurred, regardless of whether the patient had a reasonable opportunity to discover that he or she was harmed by it. The only exceptions to this larger seven-year deadline are cases where a foreign object was left in a surgical patient, or when the malpractice was concealed through the defendant's fraud. In those situations, the two-year "clock" starts running once the occurrence of the medical error would have been discovered with reasonable diligence.
Now, what happens if the medical malpractice statute of limitations deadline has passed, and you try to file your lawsuit anyway? It’s a safe bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit.
According to Mississippi Code section 15-1-36, a potential medical malpractice plaintiff must give the defendant health care provider written notice of their intention to file the lawsuit. While the law doesn't prescribe a particular format for the notice, it must explain the legal basis for the claim and describe the specific nature of the patient's injuries. The notice must be sent to the health care provider at least 60 days before the filing of the lawsuit.
In addition, almost all medical malpractice lawsuits filed in Mississippi must be accompanied by a certificate in which the plaintiff's attorney swears under oath that:
There are a few alternatives to filing the certificate, spelled out at Mississippi Code section 11-1-58, and a certificate isn't required for certain types of cases, including those in which the health care provider's negligence is said to "speak for itself," and those based on the lack of the patient's informed consent. But failure to file a required certificate could result in the dismissal of your medical malpractice lawsuit.
Like a lot of states, Mississippi caps noneconomic damages in medical malpractice cases, effectively limiting the amount of money that a successful plaintiff can receive even after a jury has found the defendant liable for medical malpractice.
Mississippi's cap for noneconomic damages is set at $500,000, and you can find this law codified at Mississippi Code section 11-1-60.
It's important to understand the different kinds of medical malpractice damages, and the kinds of compensation that this law does and does not affect.
Noneconomic damages are those that are meant to compensate the plaintiff for the negative effects of the malpractice that aren't so easily calculable, and at the same time are more subjective from plaintiff to plaintiff. They include compensation for pain and suffering, mental anguish, emotional distress, loss of enjoyment of life, disfigurement, and similar losses caused by the defendant's malpractice. These are the kinds of losses that are subject to Mississippi's medical malpractice damages cap.
Mississippi's cap on medical malpractice damages does not apply to economic damages, which include payment of past medical bills, prospective payment for future medical care, reimbursement of lost income, compensation for any limitations on the plaintiff's ability to earn a living because of the malpractice, and any other provable financial losses that can be tied to the malpractice and/or to the medical treatment that was made necessary by it.
If you're looking for more specifics on Mississippi's medical malpractice laws and how they apply to your potential case, it might be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>A "statute of limitations" is a law that sets a time limit on your right to file a lawsuit after suffering some kind of harm.
Missouri, like many states, has a specific statute of limitations for medical malpractice lawsuits.The standard deadline gives an injured patient two years from the date on which the underlying medical error occurred to get a lawsuit filed in the state's civil court system.
You can find the full text of the Missouri statute of limitations for medical malpractice lawsuits at Missouri Revised Statutes section 516.105.
This law goes on to specify that if the malpractice case arose from a health care professional's "introducing and negligently permitting any foreign object to remain within the body of a living person"—leaving a surgical instrument or sponge inside a patient, for example—or the negligent failure to inform the patient of medical tests results, then the lawsuit must be filed within two years of the date on which the mistake was, or through the exercise of ordinary prudence could have been, discovered.
There is also an overall deadline (called a "statute of repose") which says no medical malpractice case can be filed in Missouri if more than 10 years have passed since the alleged treatment mistake was made (no matter what type of mistake it was, or when it was discovered).
Finally, a specific filing deadline exists in Missouri for a lawsuit brought by (or on behalf of) a medical malpractice plaintiff who was a minor (younger than 18) at the time the medical error occurred. Missouri law says that these cases must be filed by the time the prospective plaintiff turns 20 years of age. And for all intents and purposes, the "statute of repose" discussed above does not apply to these claims. In other words, a prospective plaintiff who was under 18 at the time the alleged malpractice was committed still has until their 20th birthday to get the lawsuit filed.
If you don't get your medical malpractice lawsuit filed before the applicable deadline, chances are the court will refuse to consider your case. That's why it's crucial to pay attention to (and comply with) the medical malpractice statute of limitations.
Missouri Revised Statutes section 538.225 says that, when bringing a medical malpractice action against a health care provider, the plaintiff (or the plaintiff's attorney) must file an affidavit stating that he or she has obtained a written opinion of a "legally qualified health care provider" who has found that:
Section 538.225 says that this affidavit must be filed within 90 days of the filing of the lawsuit (although if "good cause" is shown, an extension (of no more than an additional 90 days) may be granted.
Failure to file a proper and timely affidavit will likely result in the dismissal of your medical malpractice lawsuit.
Missouri's cap on medical malpractice damages limits the amount of noneconomic damages that a successful plaintiff can be awarded even after a jury has held that the defendant is liable for committing medical malpractice.
Missouri Revised Statutes section 538.210 says that in any medical malpractice lawsuit alleging damages caused by the provision of health care services (or the failure to provide health services), the plaintiff won't be able to recover more than $400,000 as compensation for noneconomic losses, although the law also says that that figure is to be adjusted each year by 1.7%. For the year 2022, the cap is $450,098. In addition, this cap remains in place regardless of the number of health care providers that are sued as part of the medical malpractice lawsuit.
Section 538.210 also increases the noneconomic damages cap in medical malpractice cases involving "catastrophic personal injury" or wrongful death. That cap is set at $787,671 for the year 2022.
(Current damages caps—and caps for future years—are posted on the Missouri Department of Insurance's website.)
Noneconomic damages are meant to compensate the plaintiff for the negative effects of medical malpractice that aren't easily calculable, and are more subjective from plaintiff to plaintiff. They include compensation for pain and suffering, mental anguish, loss of enjoyment of life, disfigurement, and similar losses caused by the defendant's malpractice.
This article provides a brief summary of some key Missouri laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your situation, an experienced Missouri medical malpractice attorney will have the answers.
]]>A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. If you try to file your lawsuit after the medical malpractice statute of limitations deadline has passed, you can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that's the end of your lawsuit.
In Hawaii, the statute of limitations for a medical malpractice lawsuit is codified at Hawaii Revised Statutes section 657-7.3, and it says no such case "shall be brought more than two years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury." So, once you know or could reasonably be expected to know that you were harmed by an act of medical malpractice, the clock starts running, and you need to get your lawsuit filed within two years.
The Hawaii law goes on to specify that no medical malpractice lawsuit can be filed "more than six years after the date of the alleged act or omission causing the injury or death." This is known as a "statute of repose," and it's important in cases where a medical error occurs but harm to the patient does not manifest right away, or when medical malpractice ends up causing a patient's death years after the treatment error occurred. For cases like these in Hawaii, even where it is clear that the patient’s death was caused by the medical error, no lawsuit can be filed if more than six years have passed since the error occurred.
This over-arching six-year time limit will be "tolled" (meaning the clock will stop running) during any amount of time in which the defendant (the doctor or other care provider) knows about but fails to disclose any act, error, or omission related to the medical malpractice case.
Before a medical malpractice lawsuit can be filed in Hawaii's court system, Hawaii Revised Statutes section 671-12 requires that the prospective plaintiff "submit an inquiry" to a "medical inquiry and conciliation panel" consisting of one attorney and one properly-licensed physician.
The inquiry must include:
Submission of the inquiry typically requires payment of a $450 fee, but it may be reduced or waived in certain situations.
After receiving the inquiry, giving notice to all named care providers, and giving each provider a chance to file a written response, the panel sets a date for to consider all evidence, review medical records, and hear from witnesses. If the parties are unable to resolve the issue during the review process, the panel will terminate the panel and the patient will be allowed to file a medical malpractice lawsuit in Hawaii's courts.
Under Hawaii Revised Statutes section 671-12.5, any inquiry filed with the panel must be accompanied by a "certificate of consultation" in which the injured patient (or the patient's attorney or other representative) declares that he or she has:
In situations where this certificate can't be obtained—because of an impending lawsuit filing deadline, or because of an inability to obtain a proper consultation despite a "good faith" attempt—exceptions might be made.
(Note: This is just a simplified summary of Hawaii's procedural requirements for medical malpractice lawsuits. For the specifics, and for legal advice that's tailored to your specific situation, it may be time to talk with an experienced Hawaii medical malpractice lawyer.)
Hawaii, like a number of states, has passed a law that limits or "caps" certain kinds of compensation in certain injury-related civil cases. Also like most states, Hawaii’s cap applies only to non-economic damages (specifically, "pain and suffering" damages).
Hawaii Revised Statutes section 663-8.7 limits pain and suffering damages to $375,000 in almost any kind of personal injury (tort) case in Hawaii, including medical malpractice lawsuits.
So, even if a jury in Hawaii found a doctor liable for malpractice and awarded an injured patient $1.5 million as compensation for pain and suffering, this law would kick in to reduce that award to $375,000.
It's important to point out that Hawaii's cap on medical malpractice damages does not apply to economic damages, which are losses that include the plaintiff's past medical bills, cost of future medical care, reimbursement of lost earnings, compensation for harm to the plaintiff's ability to work because of the malpractice, and any other provable losses that can be tied to the malpractice and/or to the medical treatment that was made necessary by it.
]]>First, as a quick refresher for those who aren’t fluent in "legalese," a statute of limitations is a law that puts a firm limit on the amount of time you can let pass before going to court and filing a lawsuit after you have suffered some type of injury or loss. There are different deadlines depending on the kind of lawsuit you want to file.
Delaware’s statute of limitations for medical malpractice lawsuits can be found at Delaware Code Title 18 section 6856, and it gives a potential medical malpractice plaintiff two years to get their medical malpractice lawsuit started. In Delaware, that means filing not just the initial complaint but also an affidavit of merit from a qualified expert medical witness who states that there is "reasonable grounds to believe that there has been healthcare medical negligence" committed by the defendant (more on this below).
Usually the clock starts running on "the date upon which such injury occurred" but Delaware makes an exception in cases where the injury "was unknown to and could not in the exercise of reasonable diligence have been discovered" by the prospective plaintiff. In that situation, the deadline is extended from two to three years. But you can't rely on this "discovery" exception once three years have passed from the date on which the medical error was committed.
Delaware also has a fairly unique rule that lets a potential medical malpractice plaintiff "toll" the statute of limitations (keep the clock from running, in other words) for 90 days by sending a "Notice of Intent to investigate" to every potential defendant—by certified mail, with return receipt requested—at the defendant's regular place of business. This notice does not need to be filed with the court, but it needs to include each defendant’s name, the name of the potential plaintiff, and a brief description of the issue being investigated.
Finally, what if you try to file the lawsuit after the statute of limitations deadline has passed? You can bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case. The court will almost certainly grant the request, and that will be the end of your lawsuit. That’s why it’s crucial to pay attention to (and comply with) the medical malpractice statute of limitations.
According to Delaware Code Title 18 section 6853, any medical malpractice lawsuit filed in the state must be accompanied by an "affidavit of merit" from an expert witness.
This additional filing must:
If "good cause" is shown, the court will grant a single 60-day extension for filing the affidavit. According to section 6853, good cause "shall include, but not be limited to, the inability to obtain, despite reasonable efforts, relevant medical records for expert review."
If the affidavit does not accompany the initial complaint, and if a motion for extra time to file the affidavit has not been filed, the clerk of the court is required to refuse to file the lawsuit.
A number of states have passed laws that "cap" the amount of compensation ("damages") that a successful plaintiff can receive even after prevailing in a lawsuit against a health care provider.
Delaware has no such law on the books, so an injured patient doesn't need to worry about any statutory limit on his or her medical malpractice damages.
This article provides a brief summary of some of the Delaware laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Delaware medical malpractice attorney will have the answers.
]]>A "statute of limitations" is a law that sets a time limit on your right to file a lawsuit after suffering some kind of harm. The District of Columbia, like a number of jurisdictions in the U.S., has a broad statute of limitations that applies to many kinds of injury-related civil lawsuits, including medical malpractice lawsuits.
D.C. Code section 12-301 gives you three years to get your lawsuit filed, starting "from the time the right to maintain the action accrues." In most medical malpractice cases, that typically means three years from the date when the alleged medical error occurred, but in some cases it can mean three years from the date on which you discover—or could reasonably have been expected to discover—that you were harmed by medical malpractice.
The main exceptions to D.C.'s strict three-year deadline for filing a medical malpractice lawsuit come into play when the prospective plaintiff is a minor (under 18 years of age), has been declared mentally incompetent, or is in prison. In those situations, the statute of limitations is usually "tolled" (meaning the "clock" doesn't run) until the plaintiff's status changes—meaning he or she turns 18, is declared mentally competent, or is released from incarceration.
What if you try to file your medical malpractice case after the deadline has passed? Chances are the doctor or health care entity you are trying to sue will point out that the statutory deadline has passed, they will file a motion to dismiss the case, and the court will grant that motion. You'll end up losing your right to ask the court for any civil remedy for the defendant's wrongdoing and the harm it caused you. That's why it's crucial to pay attention to (and comply with) the medical malpractice statute of limitations.
An injured patient who wants to file a medical malpractice lawsuit in D.C. must usually notify the prospective defendant health care provider at least 90 days before filing the case in the district's courts, according to D.C. Code section 16-2802.
This notice of intent must include sufficient details to effectively put the defendant health care provider on notice of the legal basis for the injured patient's claim, including the type and extent of the harm allegedly suffered by the patient as a result of the malpractice.
The notice can be sent to ("served on") the potential defendant at the last address listed with a district licensing authority (such as the D.C. Department of Health).
If the patient is unable to comply with the 90-day deadline, and a "good faith" effort is made to give requisite notice, the court may forgive a delay.
Finally, if the notice is served within 90 days of the expiration of the statute of limitations deadline (as discussed in the previous section), the lawsuit filing deadline will be extended 90 days from the date on which the notice was served on the provider (that's according to D.C. Code section 16-2803).
A number of states have passed laws that "cap" the amount of compensation ("damages") that a successful plaintiff can receive even after prevailing in a lawsuit against a health care provider.
Washington D.C. has no such law on the books, so an injured patient doesn't need to worry about any statutory limit on his or her medical malpractice damages.
This article provides a brief summary of some of the D.C. laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the district's laws will affect your situation, an experienced Washington D.C. medical malpractice attorney will have the answers.
]]>In this article, we'll look at two key Connecticut medical malpractice laws:
First, in case your legalese is rusty, let's provide a little background information. A "statute of limitations" is a state law that limits the amount of time you have to get a lawsuit filed after you have suffered some kind of harm. If you try to file your malpractice case after the statutory time limit has passed, it's a safe bet that the doctor or health care entity you are trying to sue will point out to the court that you missed the deadline, and the court will grant a motion to dismiss the case (unless some rare exception applies to effectively extend the deadline).
Now, what does the law say in Connecticut? Connecticut General Statutes section 52-584 states that any lawsuit for injury caused "by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, advanced practice registered nurse, hospital or sanatorium" must be brought to the state's civil courts within two years. That means filing the initial complaint and the "reasonable inquiry" certification that we'll discuss in the next section of this article.
The statute of limitations "clock" starts running on the date on which "the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered." So, if you don’t learn about your injury right away, you still have some leeway to get the case started, but you'll also have the burden of showing that you could not have reasonably discovered the harm before you did.
Section 52-584 goes on to say that no medical malpractice lawsuit "may be brought more than three years from the date of the act or omission complained of.” In other words, the statute really only gives you one extra year in which to discover that you were harmed by malpractice. Once three years have passed since the defendant committed the medical error, you’ve lost your right to file the medical malpractice lawsuit in Connecticut.
Connecticut lawmakers have passed a law that places something of a procedural hurdle in the path of injured patients looking to take their case to court.
Connecticut General Statutes section 52-190a says that, before filing a medical malpractice lawsuit against a health care provider in the state's civil court system, the injured patient (or the patient's attorney) must file a certificate with the court declaring:
Section 52-190a also says that, as part of the "reasonable inquiry" process, the plaintiff is required to "obtain a written and signed opinion" from a qualified medical expert, in which the expert:
A few more notes on this process:
Unlike many states, Connecticut has not passed a law that limits (or "caps") damages in medical malpractice cases. So there is no statutory limit on the amount of money that a successful plaintiff can receive, after a jury has found the defendant health care provider(s) liable for medical malpractice.
If you're looking for more specifics on Connecticut's medical malpractice laws and how they apply to your potential case, it might be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>If you're thinking about filing a medical malpractice lawsuit in Illinois, the first law you need to be aware of is the statute of limitations, which puts a strict limit on the amount of time you have to get your case started in the state's civil court system.
Like a lot of states, Illinois has a statute of limitations that specifically applies to medical malpractice cases. That law says these kinds of lawsuits must be filed within two years of the date on which the prospective plaintiff actually knew, "or through the use of reasonable diligence should have known," about the injury that was caused by the health care professional’s malpractice.
The Illinois medical malpractice statute of limitations, which you can find at 735 ILCS section 5/13-212(a), goes on to set a larger deadline for cases where the prospective plaintiff’s injury is not discovered right away; it says that "in no event" shall a medical malpractice lawsuit be brought more than four years after the date on which the underlying medical error occurred.
In Illinois, there is also a specific filing deadline for a lawsuit filed by (or on behalf of) a medical malpractice plaintiff who is under the age of 18 at the time they are harmed. These cases must be filed within eight years of the date on which the underlying malpractice occurred, but in no event can such a case be brought beyond the injured person’s twenty-second birthday.
If you wait too long to get your lawsuit started—you try to file it after the statutory time limit has already passed, in other words—the court will almost certainly refuse to consider your claim (unless a rare exception acts to extend the deadline). That’s why it’s so important to comply with the statute of limitations in a medical malpractice case.
An Illinois medical malpractice plaintiff must attach to the complaint (the document that starts the lawsuit) an affidavit declaring that the plaintiff (or the plaintiff's attorney) has consulted a health care professional who:
The affidavit must also include a written report from the consulted health professional, stating that "there is a reasonable and meritorious cause" for the lawsuit.
A few more notes on the Illinois "affidavit of merit" requirement:
Prior to 2010, the clear answer to this question was "yes." Like a lot of states, Illinois passed a law that put a limit or "cap" on how much a plaintiff could receive in the way of non-economic damages after a successful medical malpractice lawsuit. Illinois had in place a $500,000 cap on non-economic damages for cases against a negligent doctor or other health care professional, and a $1 million cap for lawsuits against a hospital or other health care facility.
But this cap was declared unconstitutional by the Illinois Supreme Court in the 2010 case of Lebron v. Gottlieb Memorial Hospital, and the statute providing for the limits on damages was eventually repealed. So, for any medical malpractice case filed after that decision, there is no cap of any kind on damages in medical malpractice cases.
You may be wondering, what are non-economic damages? They represent compensation for the kinds of more subjective losses that typically aren’t easy to quantify by a dollar figure. Non-economic damages include compensation for pain and suffering, loss of enjoyment, anxiety, lost companionship, scarring, disfigurement, and other negative effects of the plaintiff’s injuries.
Economic damages were never capped under Illinois law. This category of damages includes reimbursement and payment of past and future medical expenses, reimbursement of lost income, payment for diminished ability to earn a living, and any other financial losses stemming from the medical malpractice.
This article provides a brief summary of some of the Illinois laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Illinois medical malpractice attorney will have the answers.
]]>A medical malpractice lawsuit is usually a pretty complex undertaking in any state, Georgia included. First, the legal and medical issues common to these cases are notoriously complicated. And second, the plaintiff (the injured patient, or his or her legal representative) usually needs to comply with one or more procedural rules that are unique to these kinds of lawsuits. Finally, the plaintiff needs to understand the rules on the types of compensation ("damages") that can be awarded in a successful court case. In this article, we'll look at some key Georgia medical malpractice laws, including the "expert affidavit" requirement, the lawsuit-filing deadline, and the current status of the Georgia medical malpractice damages cap.
Anyone who wants to file a medical malpractice lawsuit in Georgia first needs to be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state’s civil court system.
The standard statute of limitations for a medical malpractice lawsuit in Georgia can be found at section 9-3-71 of the Georgia Code, and it says "an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred."
The Georgia law goes on to specify that "in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred."
This last section of the law is known as a "statute of repose," and it is important in cases where a medical error occurs, but harm to the patient does not manifest right away, or when medical malpractice ends up causing a patient’s death years after the treatment error occurred. In a case like that, even where it is clear that the patient’s death was caused by the medical error, no lawsuit can be filed if more than five years have passed since the error occurred.
There is an exception to this overall five-year deadline for medical malpractice lawsuits in Georgia. Where a "foreign object" has been left in a patient's body, the lawsuit must be brought within one year after the medical negligence is discovered. That would include a surgical instrument or a sponge used during a procedure, but the relevant Georgia statute specifically states that a "chemical compound, fixation device, or prosthetic aid or device" does not qualify as a "foreign object." This law can be found at Georgia Code section 9-3-72.
If you try to file your Georgia medical malpractice lawsuit after the applicable deadline has passed, the court is almost certain to dismiss your case, no matter how glaring the health care provider's error, or how badly you were harmed. That's why it's so important to understand and comply with the medical malpractice statute of limitations.
According to Georgia Code section 9-11-9.1, when any medical malpractice lawsuit is filed in Georgia's courts, besides the initial complaint (the document that sets out the plaintiff's allegations against the health care provider and starts the civil case), the plaintiff must file an affidavit prepared by a qualified medical expert who will offer a sworn opinion as to at least one negligent act committed by the health care provider who is being sued, including the expert's factual basis for that opinion.
A few more notes on Georgia's "expert affidavit" requirement:
This is just a quick summary of Georgia's "affidavit of expert" filing requirement. For the details, conduct your own research or discuss your situation with an experienced Georgia medical malpractice lawyer.
The state of the law isn't settled, but Georgia lawmakers have legislated a "cap" on certain kinds of medical malpractice damages. In other words, even after a jury holds a defendant liable for malpractice and awards a plaintiff a certain amount of damages, this Georgia law kicks in to cap the actual amount that the plaintiff will end up getting.
Like most states, Georgia’s medical malpractice damage caps apply only to noneconomic damages. That includes compensation for the injured patient's pain and suffering, anxiety, mental anguish, loss of enjoyment, lost companionship, scarring, and similar difficult-to-quantify losses caused by the defendant’s malpractice.
Georgia has a $350,000 cap in place on non-economic damages in any single medical malpractice claim against health care providers. For claims against a single health care facility there is a $350,000 cap on noneconomic damages, which bumps up to $700,000 if more than one facility is deemed liable. For any single medical malpractice case, there is an overall $1.05 million cap on noneconomic damages.
But note that in 2010, Georgia’s cap on non-economic damages was deemed unconstitutional by the Georgia Supreme Court, so the application of this cap is very much in doubt when it comes to medical malpractice lawsuits filed in Georgia after 2010.
Although the state of Georgia’s damages cap is murky, one thing is clear: the cap has no effect on a plaintiff’s economic damages. Put another way, there is no limit on how much compensation a medical malpractice plaintiff can receive for things like medical care (past and future) necessitated by the malpractice, lost earnings, lost future earning capacity, and any other economic losses attributable to the defendant’s malpractice.
If you're looking for more specifics on Georgia's medical malpractice laws and how they apply to your potential case, it could be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>You can find Iowa’s statute of limitations for medical malpractice lawsuits at Iowa Code section 614.1, and it says that this kind of case must be filed within two years of the date “on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of,” the injury or death stemming from the alleged malpractice. In other words, two years from the point when you know, or should reasonably know, that you have a case.
There is a larger catch-all deadline (known as a “statute of repose” in legalese) for medical malpractice lawsuits filed in Iowa, which says that “in no event” shall any such case action be brought more than six years after the date on which the alleged malpractice occurred. So, once six years have passed, your right to file a medical malpractice lawsuit is lost in Iowa, even if you didn’t know (and couldn’t have known) that you were harmed by malpractice during that time.
The only exception to this larger six-year deadline is for medical malpractice cases where “a foreign object unintentionally left in the body caused the injury or death.” In those situations—where a sponge or surgical instrument is left at the surgery site, for example—the patient has the typical two-year time period in which to start the case once the medical error is discovered, and there is no over-arching six-year deadline.
If the lawsuit filing deadline has passed and you try to file the case anyway, you can count on the defendant (the doctor or hospital you’re suing) asking the court to dismiss the case, and the court granting the motion. If that happens, that’s the end of your lawsuit. That’s why it is crucial to pay attention to and abide by Iowa’s medical malpractice statute of limitations as it applies to your case.
]]>What is the Virginia statute of limitations for a medical malpractice lawsuit?
First, some background for readers who aren’t fluent in the language of “legalese.” A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury.
Virginia’s standard statute of limitations for a medical malpractice lawsuit is the same as the overall rule that applies to most types of lawsuits for injury, which can be found at Code of Virginia section 8.01-243. This rule specifies that the case “shall be brought within two years after the cause of action accrues”—which means two years from the date on which the health care provider committed the alleged malpractice.
Section 8.01-243 sets out special exceptions to this two-year deadline for medical malpractice cases where a foreign object was left in a patient, and where “fraud, concealment or intentional misrepresentation prevented discovery of the injury within the two-year period.” In those situations, the filing deadline is “one year from the date the injury is discovered or, by the exercise of due diligence, reasonably should have been discovered.” Keep in mind that if you are relying on this “discovery rule,” as the plaintiff you have the burden of proving that you did not discover right away that the medical error occurred, and that you could not have reasonably discovered the malpractice until you actually did.
Virginia’s statute of limitations also spells out a rule for medical malpractice claims involving "negligent failure to diagnose a malignant tumor” or certain forms of cancer. In these cases, the lawsuit filing deadline is extended for a period of one year from the date on which a correct diagnosis is "communicated to the patient by a health care provider."
There is a larger catch-all filing deadline for medical malpractice lawsuits in Virginia, which says that these kinds of cases cannot be filed “beyond ten years from the date the cause of action accrues.” This is known as a “statute of repose,” and it means that no lawsuit can be filed if more than ten years have passed since the malpractice occurred. The only exception is for cases where the patient was under a legal disability at the time the underlying malpractice occurred (the patient was under 18 or legally incapacitated, for example), and that disability continues beyond the 10-year timeframe.
Finally, remember that if Virginia’s statute of limitations deadline has passed, and you try to file your lawsuit anyway, the health care provider you’re trying to sue will ask the court to dismiss the case as time-barred. If the court grants the request (which is a near certainty), that will be the end of your lawsuit. So it’s imperative that you pay attention to the filing deadline. Learn more about the Statute of Limitations in a Medical Malpractice Case.
A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. If you try to file your lawsuit after the medical malpractice statute of limitations deadline has passed, you can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that's the end of your lawsuit.
Like a lot of states, Utah has a dedicated statute of limitations that applies to medical malpractice lawsuits. This law can be found at Utah Code section 78B-3-404, which says: "A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs." So, if the malpractice is not known of right away, the case must be filed within two years of the date on which it is actually (or could reasonably be) discovered by the plaintiff.
Utah's medical malpractice statute of limitations goes on to set a larger, catch-all deadline (known as a "statute of repose") declaring that no such action shall be brought once four years have passed since the medical error occurred. But there are two kinds of cases where this larger four-year deadline does not apply: those where a foreign object was left in the patient’s body, and those where the health care provider concealed the malpractice through fraud. In those situations, once the existence of the malpractice case is discovered, the plaintiff has one year to file the lawsuit.
Before an injured patient can file a medical malpractice lawsuit, Utah Code section 78B-3-412 requires the patient to provide each health care provider with 90 days' notice of the intent to start the case. This notice must include a number of details set out in the statute, including:
Within 60 days of sending the "notice of intent," the patient must also file a request for "prelitigation panel review" of the claim with the state's Division of Occupational and Professional Licensing.
The panel's deliberations are confidential, and its decision nonbinding. Once the panel issues its decision, all prelitigation requirements will have been met, and the lawsuit can be filed.
The rules are spelled out at Utah Code sections 78B-3-416 and 78B-3-418. (Note: The above section provides only a simplified summary of Utah's procedural requirements for medical malpractice lawsuits. For the specifics, and for legal advice that's tailored to your specific situation, it might be time to talk with an experienced Utah medical malpractice lawyer.)
Some state laws require a plaintiff in a medical malpractice case to file an "affidavit of merit" before the lawsuit can proceed. An affidavit of merit typically must state that a qualified health care provider has reviewed the patient's case and determined that the defendant health care provider's conduct did not meet the appropriate medical standard of care.
Utah has a statute on the books (at Utah Code section 78B-3-423) requiring affidavits of merit in certain situations. However, the Utah Supreme Court ruled in 2019 that the law is unconstitutional. Under that ruling, affidavits of merit are no longer required before a medical malpractice case can proceed. (Vega v. Jordan Valley Medical Center, LP, 449 P.3d 31 (2019).)
Like most U.S. states, Utah has a law that limits or "caps" the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff proves that the defendant committed malpractice—and a jury reaches the same conclusion—the actual amount of damages the plaintiff can be awarded is limited.
Also like most states, Utah's cap applies only to noneconomic damages, limiting those to $450,000 for any medical malpractice case arising after May 15, 2010. You can find the full text of this law at Utah Code section 78B-3-410.
So, what are these all-important "noneconomic damages"? In any injury case, noneconomic damages include compensation for things like pain and suffering, emotional distress, and loss of enjoyment of life. Noneconomic damages are said to be more "subjective" from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
Remember that Utah does not cap economic damages in a medical malpractice case, which typically consist of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the malpractice on which the lawsuit is based.
]]>As background, a “statute of limitations” is a law that imposes a strict time limit on your right to file a lawsuit against a defendant—meaning against a doctor or health care facility, in the context of a medical malpractice case. If the deadline has passed and you try to file the case anyway, it’s a safe bet that the defendant will ask the court to dismiss the case, and that the court will grant that request. That’s why it’s crucial to pay attention to the statute of limitations as it applies to your case, otherwise you’ll almost certainly lose your right to any civil remedy over the alleged malpractice.
You can find North Carolina’s statute of limitations for medical malpractice cases at North Carolina General Statutes section 1-15. This law (along with section 1-17) sets time limits for a number of different scenarios.
While the specifics of the filing deadline can be a bit confusing—especially as to when the "clock" starts running for purposes of the rule—the statute makes clear that you have at least three years to file the lawsuit after the occurrence of the underlying medical error.
But if the injury is not readily apparent at the time the medical error happened, and is not reasonably discovered by the patient until two or more years have passed, then the patient has one year from the date of the discovery to get a lawsuit filed against the health care provider.
Finally, section 1-15 mandates that no medical malpractice lawsuit can be filed in North Carolina if more than four years have passed since the commission of the medical error, except for cases where a foreign object (such as a surgical instrument or a fragment of a sponge) is left inside a patient. In those situations, the lawsuit must be filed within one year of the date on which the foreign object’s presence is discovered, provided that the case is filed within ten years of the date on which the underlying surgery error or other mistake was made.
North Carolina General Statutes section 1-17 provides different deadlines for filing a medical malpractice lawsuit if the injured patient is a minor or under "legal disability."
If the person is "insane" or legally incompetent, the three-year "clock" doesn't start running until "after the removal of the disability"—that is, three years from the date the person is declared sane or competent.
Section 1-17 also provides special deadlines for minors who have been harmed by medical malpractice, as follows:
A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. If you try to file your lawsuit after the medical malpractice statute of limitations deadline has passed, you can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that's the end of your lawsuit.
Like lawmakers in a lot of states, Maine legislators have passed a statute of limitations that specifically covers medical malpractice lawsuits, and it can be found at Maine Revised Statutes Title 24 section 2902, which says that a medical malpractice lawsuit must be filed within three years "after the cause of action accrues," which simply means three years from the date on which the underlying medical error was allegedly committed by the defendant doctor or health care facility.
There is a special rule for Maine medical malpractice cases that arise from the leaving of a "foreign object" in the body of a patient. In those cases, the cause of action "accrues" when the plaintiff discovers or reasonably should have discovered the harm. So, once you know about (or should have been on notice of) the presence of the foreign object, the three year clock starts running. Maine's statute makes clear that for the purposes of this exception, a "foreign object" is not something that was intentionally implanted in the body. So the exception would not apply to a prosthetic device, but it would come into play if a sponge or surgical instrument was accidentally left inside the patient.
Maine has also enacted a special statute of limitations timeline for medical malpractice cases filed by (or on behalf of) a patient who was a minor at the time the malpractice occurred. The relevant part of the statute says that these cases must be filed "within 6 years after the cause of action accrues or within 3 years after the minor reaches the age of majority, whichever first occurs."
In order to begin his or her court case, a Maine medical malpractice plaintiff must prepare and file a "notice of claim," describing under oath "the professional negligence alleged and the nature and circumstances of the injuries and damages alleged"—in other words, details on what the health care provider did wrong, and how the patient was injured.
A separate notice is required for each health care provider being sued, and the notice must be accompanied by a $200 filing fee (though the fee may be waived in certain circumstances). For more details, check out Maine Revised Statutes Title 24, section 2853.
Maine utilizes "prelitigation" (pre-lawsuit) screening of potential medical malpractice lawsuits in order to "identify claims of professional negligence which merit compensation" and "to encourage early withdrawal or dismissal of nonmeritorious claims," according to Maine Revised Statutes Title 24, section 2851.
Soon after the plaintiff files his or her notice of claim, and the health care provider has responded to it, a screening panel is compiled (under a pretty complex process set out at Maine Revised Statutes Title 24, section 2852).
The parties then decide on a timetable for providing the panel with all relevant medical records and other evidence, and for exchanging all necessary information with one another, for review and evaluation.
Next, the panel reviews all evidence and hears testimony from the parties and their medical experts.
Then, within 30 days, the panel issues an opinion on the viability of the patient's case. This opinion remains confidential unless the panel decides unanimously in favor of either the plaintiff or defendant. In those situations, the panel's findings become admissible in court—in other words, the jury will be permitted to consider the panel's decision in making its own decision on whether malpractice was committed. (Maine Revised Statutes Title 24, section 2857.)
One final note: Under Maine Revised Statutes Title 24, section 2859, the statute of limitations "clock" is paused on the day the notice of claim is filed, until 30 days following the prelitigation panel's opinion.
In Maine, there is no law on the books that specifically limits or caps damages in a medical malpractice case—meaning compensation that is available to a plaintiff after a successful lawsuit in court. But there is a Maine law that caps noneconomic damages for any personal injury case involving allegations of wrongful death. In those cases, damages are capped at $750,000 for "the loss of comfort, society and companionship of the deceased, including any damages for emotional distress." However, Maine law does not cap economic damages, such as compensation for the costs of the deceased person's medical care.
So, for a medical malpractice case where the plaintiff(s) is alleging that the defendant’s medical negligence caused a patient’s death, even where the plaintiff ends up winning the lawsuit, any award for the noneconomic losses listed above will not be able to exceed $750,000 in accord with Maine law. You can find this rule codified at Maine Revised Statutes Title 18-C section 2-807.
If you're looking for more specifics on Maine's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>First, as a quick refresher for those who aren’t fluent in "legalese," a statute of limitations is a law that puts a firm limit on how much time can pass before you must file a lawsuit over some type of injury or loss.
Like a lot of states, Kansas has a specific statute of limitations for medical malpractice lawsuits filed in the state’s court system, and it can be found at Kansas Statutes section 60-513, which gives a prospective plaintiff two years to file their lawsuit against a doctor or other health care provider.
The "clock" usually starts running on the date you were harmed by the malpractice, but the law in Kansas contains specific language about when an injury is "discovered" for purposes of the statute of limitations:
"A cause of action...shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable …, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action."
In other words, you need to file the lawsuit within two years of the date on which you were actually harmed by—or could reasonably be expected to know that you were harmed by—the defendant’s medical error. But the larger deadline says that you can’t wait more than four years after the commission of the malpractice. So, once those four years have passed, your right to file a medical malpractice lawsuit is lost in Kansas, even if you didn’t (and couldn’t have) known you were harmed by the defendant’s wrongdoing during that time.
What happens if you try to file the lawsuit after the statute of limitations deadline has passed? You can bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case, the court will almost certainly grant the request, and that will be the end of your lawsuit. That’s why it’s crucial to pay attention to (and comply with) the medical malpractice statute of limitations.
When a medical malpractice lawsuit is filed in Kansas, any health care provider subject to the suit can ask the court to order that a "medical malpractice screening panel" be convened to assess the merits of the patient's claims, according to Kansas Statutes section 65-4901.
These screening panels are typically made up of:
Once the panel is selected, it will hear and consider all evidence and records relevant to the plaintiff's claims, and decide:
This panel's written recommendation on the above issues is admissible in any medical malpractice lawsuit, and the panel's members will usually be able to testify at any trial.
Note: The running of the statute of limitations "clock" will be paused until 30 days after the screening panel has issued its written recommendations over the matter, according to Kansas Statutes section 65-4908.
Like a lot of states, Kansas has a law on the books that limits or "caps" noneconomic damages that are available to plaintiffs in medical malpractice lawsuits. "Noneconomic damages" include compensation for the more subjective effects of the malpractice, including pain and suffering; anxiety, worry, and sleeplessness; and scarring and disfigurement.
Kansas's statutory limit on noneconomic damages depends on when the lawsuit "accrued,"—in the context of a medical malpractice case, that usually means the date of the underlying medical error. The damages cap, which is set out at Kansas Statutes section 60-19a02, was set at $325,000 for cases accruing on or after July 1, 2018 and before July 1, 2022 (and was scheduled to rise to $350,000 for cases accruing on or after July 1, 2022). But in June 2019, the Kansas Supreme Court ruled that these damage caps are unconstitutional, meaning that they can no longer be applied. (Hilburn v. Enerpipe Ltd., 309 Kan. 1127 (2019).)
It’s important to note that Kansas’s cap never applied to the other main category of medical malpractice damages: economic damages. This includes payment of past medical bills and all ongoing future medical care, reimbursement of lost income, and compensation for diminished ability to earn a living. These kinds of damages are uncapped in Kansas, except that any jury verdict for "future economic losses" must specifically spell out the time period over which payment for such losses will be necessary, according to Kansas Statutes section 60-3408.
This article provides a brief summary of some of the Kansas laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Kansas medical malpractice attorney will have the answers.
]]>A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. If you try to file your lawsuit after the medical malpractice statute of limitations deadline has passed, you can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that's the end of your lawsuit.
The standard Idaho statute of limitations as it applies to a medical malpractice lawsuit can be found at Idaho Code section 5-219, and it gives you two years to get your lawsuit filed. In most cases, the cause of action "accrues" in Idaho (meaning the clock starts running for purposes of the deadline) "as of the time of the occurrence, act or omission complained of"—the date on which the alleged medical error was committed, in other words.
But Idaho also recognizes a number of exceptions to the two-year time limit. Two of the most common situations are those 1) involving "the placement and inadvertent, accidental or unintentional leaving of any foreign object"—such as a surgical sponge or instrument—in the body of the patient, and 2) where the patient's injury has been "fraudulently and knowingly concealed" by the defendant "for the purpose of escaping responsibility."
In those two scenarios, the statute of limitations "clock" doesn’t start running until "the injured party knows or in the exercise of reasonable care should have been put on inquiry" that he or she was injured as a result of malpractice. Once that discovery is made (or once it should have been made in the eyes of the law), the patient has one year or the standard two-year time period to file the lawsuit, whichever is later.
Before an injured patient can file a medical malpractice lawsuit against an Idaho-licensed doctor or surgeon—or against a "licensed acute care general hospital" operating in the state, the patient's claim must be submitted to a hearing panel compiled by the Idaho Board of Medicine. This procedure, known as "preligitation screening," is mandated by Idaho Code section 6-1001.
The panel's decision is not binding, but submission to the process is considered a prerequisite to filing a medical malpractice lawsuit in Idaho's civil court system.
The process typically looks like this: The panel gathers evidence, reviews records, and hears from witnesses. Next, the panel provides the parties with its observations regarding the patient's claims, including its findings on whether the claim appears to be meritorious (or frivolous).
If the panel finds that the claim has merit, and if the members unanimously agree on the amount of compensation that is appropriate to award to the injured patient, the panel may advise on an appropriate settlement amount (but keep in mind that this is a non-binding proposal).
A few final notes on this process: If the panel is unable to reach a decision after more than 90 days, it must conclude the proceedings, unless the parties agree to an extension of the proceedings for an additional 30 days (according to Idaho Code 6-1011).
In Idaho, there is no law on the books that specifically limits or caps damages in a medical malpractice case, but Idaho is one of the few states that sets a cap on certain kinds of damages in all "tort" or personal injury cases, which includes those stemming from medical malpractice.
Idaho Code section 6-1603 puts a $250,000 cap on non-economic damages in personal injury cases. By law, this $250,000 cap is a variable one; it increases or decreases along with the Idaho Industrial Commission’s adjustment of the "annual living wage" in accord with Idaho Code section 72-409(2).
So, what are non-economic damages? They’re the kinds of losses that are more subjective to the plaintiff (the person who was injured), and they’re not very easy to quantify with a dollar amount. Non-economic damages include pain and suffering, anxiety, discomfort, lost enjoyment, lost companionship, and other negative effects of the accident, injuries, and medical treatment.
It's very important to note that Idaho’s $250,000 cap on non-economic damages does not apply to the other main category of compensation available to a medical malpractice plaintiff: economic damages. Those include medical expenses (past and future), lost income, lost or decreased ability to earn a living in the future, and any other losses that can be captured with a dollar figure. There is no cap on economic damages in Idaho medical malpractice cases (or in standard personal injury cases in Idaho, for that matter.)
If you're looking for more specifics on Idaho's medical malpractice laws and how they apply to your potential case, it might be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>If you want to file a medical malpractice lawsuit in New Mexico, be aware of the statute of limitations, which is a law that sets a strict limit on the amount of time you have to get your case started in the state's civil courts.
New Mexico's relevant statutory deadline can be found at New Mexico Statutes Annotated section 41-5-13, and it says: "No claim for malpractice . . . may be brought against a health care provider unless filed within three years after the date that the act of malpractice occurred."
The statute goes on to provide an exception for medical malpractice cases in which the person harmed was a minor (younger than 18 years old) and "incapacitated persons": The limitations period "shall be extended so that they shall have one year from and after the age of majority or termination of incapacity within which to commence the actions." So, for example, in a case involving birth-related medical malpractice, a newborn who was harmed by a medical error would technically have the legal right to file a lawsuit—or a parent would have the right to file the case on behalf of the child—until one year after the child's 18th birthday. For a plaintiff who has been declared mentally incompetent when the medical error happens, the statute of limitations "clock" will not start running until the patient has been declared mentally competent.
If the statutory deadline has passed, but you try to file the lawsuit anyway, it’s safe to assume that the doctor or health care facility you’re trying to sue will file a motion asking the court to dismiss the case, and the court will almost certainly grant the motion. If that happens, that’s the end of your lawsuit, and you’ve lost the right to ask the court to provide you with a civil remedy for even the most egregious of medical errors. That's why it's so important to understand and comply with the medical malpractice statute of limitations.
New Mexico Statutes Annotated section 41-5-15 says: "No malpractice action may be filed in any court against a qualifying independent provider . . . before application is made to the New Mexico medical review commission and its decision is rendered; provided, however, that an independent provider and the patient may stipulate to forego the panel process." So, review of a patient's claim by a qualified panel is basically a prerequisite to the filing of many medical malpractice lawsuit in the state's courts, unless you and the health care provider agree to waive it.
But who is considered an "independent provider" under New Mexico's medical malpractice law? In general, an independent provider is defined as an (1) individual health care provider who is not an employee of a hospital or outpatient health care facility, or (2) a business entity that is not a hospital or outpatient health care facility. (See New Mexico Statutes Annotated section 41-5-3(E) for the full list of who is counted as an independent provider in New Mexico.) As of July 1, 2021, the commission will not review claims against hospitals or outpatient health care facilities.
In order to get the medical review process started, the patient's attorney must file an "application for review" with the state's Medical Review Commission. The application must contain:
Rules related to the composition of a New Mexico medical review panel—how members are chosen, how they can be challenged, etc.—can be found at New Mexico Statutes Annotated section 41-5-17. But in most cases, a panel consists of three members who work in the same profession as the defendant health care provider, and three New Mexico attorneys.
A hearing is typically held within 60 days of the application for review, at which each side makes an introductory statement, witnesses testify, and documents and other evidence is considered.
Next, the panel deliberates and answers two questions by "secret ballot":
The decision is shared with the parties, but the panel's report isn't admissible if a medical malpractice lawsuit is filed in court. However, if the panel decides that malpractice occurred and that the patient was harmed by it, the panel will "cooperate fully with the patient" in finding and hiring a medical expert witness physician who will help with the patient's trial preparation and provide expert testimony on the patient's behalf. (New Mexico Statutes Annotated section 41-5-23.)
Like many states, New Mexico "caps" the amount of compensation that is available to a plaintiff who has been successful in a medical malpractice lawsuit.
Most states' medical malpractice damages caps apply only to noneconomic damages like pain and suffering, loss of enjoyment of life, and similar subjective damages. New Mexico’s cap is a little different, although it functions to cap noneconomic losses as well.
New Mexico has put in place a cap of $750,000 on many types of damages available to a medical malpractice plaintiff who succeeds in a lawsuit against an independent provider (see the above section for more on who is considered an independent provider). However, the cap specifically excludes compensation for "past and future medical care and related benefits." (Note that, beginning in 2023, this cap will be adjusted for inflation every year based on the consumer price index.)
In addition to the caps on independent providers, New Mexico law also places separate caps on hospitals and outpatient care facilities.
Outpatient health care facilities that are not majority-owned and -controlled by a hospital. Damage caps are adjusted each year, as follows:
Hospitals and outpatient health care facilities that are majority-owned and -controlled by a hospital. Damage caps are adjusted each year, as follows:
Again, these caps (which can be found at New Mexico Statutes Annotated section 41-5-6) do not apply to compensation for any medical and rehabilitative care made necessary by the defendant’s malpractice, including payment of ongoing care in cases of permanent disability. There's no statutory limit on these kinds of medical malpractice damages.
So while it doesn't apply to past or future medical care, New Mexico's damage caps will apply to other economic compensation, such as payment of lost income and lost ability to earn a living, and it applies to all varieties of noneconomic damages as well. That includes compensation for the injured patient's pain and suffering. (Note: New Mexico’s cap also does not apply to punitive damages, which are pretty rare in medical malpractice cases.)
New Mexico also caps each individual health care provider’s liability at $250,000, and any amount above that limit will be paid to the plaintiff out of a state compensation fund that has been set up for patients who have been injured by medical malpractice.
If you're looking for more specifics on New Mexico's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. If you try to file your lawsuit after the medical malpractice statute of limitations deadline has passed, you can bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case. If the court grants the request (which it almost certainly will), that's the end of your lawsuit.
Montana’s statute of limitations for medical malpractice lawsuits is codified at Montana Code section 27-2-205, and it states that this kind of case must be filed in the state’s civil court system "within two years after the date of injury or within two years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last."
There is a larger catch-all filing deadline for medical malpractice lawsuits in Montana, which says "in no case may an action be commenced after five years from the date of injury." So, no lawsuit can be filed if more than five years have passed since the alleged medical error was committed, regardless of whether the patient knew or should have known that he or she was harmed by it.
Montana has a special statute of limitations for medical negligence that injures a young child. If the child was younger than four years old when he or she was injured, the two-year and five-year statutes of limitations begin to run when the child turns eight years old.
One final note, the statute of limitations will be "tolled" (will stop running, in other words) for any period during which the defendant knew, or through the use of reasonable diligence should have known, that malpractice was committed, but failed to disclose it to the plaintiff. The over-arching five-year deadline does not apply to these kinds of cases.
Before you can file a medical malpractice lawsuit in Montana's courts, in most instances you must first file a claim with the Montana Medical Legal Panel. A lawsuit-filing prerequisite like this is Montana's attempt to discourage the filing of frivolous medical malpractice cases in court.
First, the injured patient must file an Application for Review of Claim, according to Montana Code section 27-6-302. This application includes:
To get an idea of what this looks like, see an Application for Review of Claim.
Next, a hearing is held, at which each side makes an introductory statement, witnesses are called to testify, and evidence is introduced. The panel then goes into deliberations, during which it considers:
The panel's majority decision is communicated to the parties, and though it's not binding, the panel can recommend a certain financial award for the patient.
A few final notes on this process: The panel has the power to discuss and approve a settlement agreement which will be binding on the parties. And if the panel finds substantial evidence that the patient was harmed by malpractice, and a lawsuit is filed in court, the court must order the parties to participate in mediation if any party requests it.
Like many states, Montana has passed a law that limits (or "caps") noneconomic damages in medical malpractice cases, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has found the defendant liable for medical malpractice.
Montana's cap for noneconomic damages in medical malpractice cases is set at $250,000, according to Montana Code section 25-9-411.
So, what are noneconomic damages? They are meant to compensate the plaintiff for the negative effects of medical malpractice that aren't easily calculable; losses that are more subjective from plaintiff to plaintiff. They include compensation for pain and suffering, stress and anxiety, loss of enjoyment of life, scarring and disfigurement, and similar harm caused by the defendant's malpractice.
It's important to point out that Montana's cap on medical malpractice damages does not apply to economic damages, which are losses that include the plaintiff's past medical bills, cost of future medical care, reimbursement of lost earnings, compensation for harm to the plaintiff's ability to work because of the malpractice, and any other provable losses that can be tied to the malpractice and/or to the medical treatment that was made necessary by it.
If you're looking for more specifics on Montana's medical malpractice laws and how they apply to your potential case, it might be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>What is Michigan’s statute of limitations for filing a medical malpractice lawsuit?
First, a little background: A “statute of limitations” is a law that impacts your right to file a lawsuit. Specifically, it sets a strict limit on the amount of time you have to get your case started in court. If the deadline has passed and you try to file the lawsuit, it’s a safe bet that the defendant—in the context of a medical malpractice case, that’s the doctor or health care facility you’re trying to sue—will ask the court to dismiss the case. And if the court grants that request (as it almost certainly will), that’s the end of the lawsuit. So it’s crucial to pay attention to the statute of limitations as it applies to your case.
Now, onto the specifics of Michigan’s statute of limitations in medical malpractice cases. The standard deadline, in Michigan Compiled Laws section 600.5805(8), gives you two years to get your lawsuit filed in the state’s court system, starting from the date when the alleged medical error was committed.
But there is another Michigan law that could extend the filing deadline. Michigan Compiled Laws section 600.5838a says that a medical malpractice case must be filed within the standard two-year time period or “within six months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.” Keep in mind that if you are relying on this six-month rule, as the plaintiff you have the burden of proving that you did not discover—and could not have reasonably discovered—the existence of the claim.
However, Michigan also has an outside deadline for filing a medical malpractice lawsuit (known as a "statute of repose") of six years after the medical error, regardless of when it was or should've been discovered. The only exceptions are cases where the defendant fraudulently concealed the error, or when the malpractice led to "permanent loss of or damage to a reproductive organ resulting in the inability to procreate.” In those two situations, there is no larger six-year deadline.
(To find the full text of the statutes discussed in this article, search on the Library of Congress's Guide to Law Online.)
by: David Goguen, J.D.
First, some background for readers who may not be fluent in the language of "legalese": A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit. There are different deadlines for different kinds of cases.
Minnesota’s statute of limitations for medical malpractice lawsuits can be found at Minnesota Statutes section 541.076. This law reads: "An action by a patient or former patient against a health care provider alleging malpractice, error, mistake, or failure to cure . . . must be commenced within four years from the date the cause of action accrued." Although the statute doesn't spell out when exactly that happens, the Minnesota Supreme Court has long held that a cause of action accrues—and the four-year time period begins—when there has been some injury or other damage as a result of an allegedly negligent medical error. (See MacRae v. Group Health Plan, Inc., 753 N.W.2d 711 (Minn. 2008).)
What if Minnesota’s four-year deadline has passed and you try to file the lawsuit anyway? It’s a safe bet that the doctor or health care facility you’re trying to sue will file a motion asking the court to dismiss the case. The court will almost certainly grant the motion (unless an exception applies; we’ll discuss some of those below) and that will be the end of the lawsuit. So it’s crucial to pay attention to the statute of limitations as it applies to your case.
Now, what about those exceptions to the four-year-deadline? The most common exception (in Minnesota Statutes section 541.15) comes into play when the prospective plaintiff is younger than 18 years of age. In that case, the statute of limitations does not start to run until the plaintiff reaches the age of 18, except that the suspension of the deadline can’t be extended for more than seven years, or for more than one year after the person has reached 18.
Perhaps the biggest hurdle facing a potential medical malpractice plaintiff in Minnesota can be found at Minnesota Statutes section 145.682, which lays out the "Certification of Expert Review" requirement for these kinds of lawsuits.
This law says that, in any lawsuit "alleging malpractice, error, mistake, or failure to cure . . . against a health care provider" in which the testimony of a qualified medical expert will be required (the vast majority of medical malpractice lawsuits, in other words), the plaintiff's attorney (or the plaintiff, if not represented) must file with the court an affidavit stating that:
This affidavit must be filed alongside the initial complaint (the document that sets out the details of the plaintiff's claims against the defendant health care provider). If the plaintiff can't get the required expert consultation in time, the affidavit filed with the complaint may simply state that it was not reasonably possible to obtain the expert review and opinion because of the statute of limitations. In that situation, the plaintiff must then serve the defendant with the certification of expert review within 90 days after filing the lawsuit.
After filing the lawsuit, the plaintiff also must typically put together an affidavit that identifies each medical expert the plaintiff is planning to use, lays out the expected substance of each expert witness's testimony, and summarizes the basis for each expert's opinion. This second affidavit must usually be served on each defendant health care provider within 180 days of the start of the "discovery" period (in which the sides of the case exchange information and evidence).
Failure to prepare and file proper "Certification of Expert Review" and "Identification of Expert" affidavits will almost certainly result in the dismissal of your medical malpractice lawsuit.
A number of states have legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even when a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff’s specific losses.
There is currently no cap on medical malpractice damages in Minnesota (including on compensation for things like pain and suffering), so an injured patient is free to recover for all financial losses that can be attributed to the defendant’s malpractice.
This article provides a brief summary of some of the Minnesota laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Minnesota medical malpractice attorney will have the answers.
]]>New Jersey, like a number of states, has a broad injury-related statute of limitations that also applies to medical malpractice lawsuits.
In case your legalese is rusty, a "statute of limitations" is a law that sets a time limit on a prospective plaintiff's right to file a lawsuit after suffering some kind of harm. If you try to file the case after the deadline has passed, the court will almost certainly throw it out. In a malpractice case, usually what happens is the doctor or health care entity you are trying to sue points out that the statutory deadline has passed and files a motion to dismiss the case. If the judge agrees and grants the motion, that’s the end of the story. So it’s crucial to pay attention to the statute of limitations as it applies to your case.
What does the law say in New Jersey? The standard statute of limitations as it applies to a medical malpractice lawsuit gives you two years to get your lawsuit filed, starting from the date the the plaintiff (the person suing) suffered harm as a result of the defendant's negligence. That typically means two years from when the alleged medical error occurred.
But in some cases, the "clock" for the statute of limitations might start running at a later date. That's because New Jersey courts use what's known as the "discovery rule" in medical malpractice cases. Under this rule, the filing deadline is two years after you discovered—or could reasonably have been expected to discover—that a doctor or other health care provider could be responsible for your harm. You should know, however, that if you're relying on the discovery rule, you will have the burden of proving that you couldn't have known about the alleged malpractice when it happened.
New Jersey also has a special filing deadline for medical malpractice cases involving injuries that happened when a baby was born. In these cases, the plaintiff must file the lawsuit before the child's 13th birthday. (Learn more about birth-related medical malpractice.) But in other cases where the patient was a minor (younger than the age of 18) when the medical error happened, the lawsuit may be filed within two years after patient's 18th birthday.
You can find these laws at New Jersey Statutes sections 2A:14-2 and 2A:14-21.
Whenever a medical malpractice lawsuit is filed in New Jersey's civil court system, New Jersey Statutes section 2A:53A-27 says that, within 60 days after the defendant health care provider has filed a response to the lawsuit, the plaintiff must provide the defendant with an "affidavit of merit."
In this affidavit, an "appropriate licensed person" (a doctor in the same field as the defendant, for example) must declare under oath that there is "a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices."
In other words, the expert must state a belief that the defendant treated the patient in a manner that did not meet the appropriate medical standard of care under the circumstances, and that there is a valid basis for filing this medical malpractice lawsuit.
A few more important details on the "affidavit of merit" in New Jersey:
A lot of states have laws on the books that "cap" medical malpractice damages, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice. Some of these laws apply to the overall award, while many apply only to noneconomic damages like pain and suffering, loss of enjoyment, and stress.
So far, New Jersey has not set an upper limit on compensatory damages (financial losses as well as noneconomic damages) in medical malpractice cases. But in any injury case, New Jersey Statutes section 2A:15-5.14 limits punitive damages to $350,000 or five times the amount of compensatory damages, whichever is greater.
Keep in mind that punitive damages are pretty rare in a medical malpractice lawsuit, and in New Jersey they require proof that the defendant acted with "actual malice" or a "wanton and willful disregard" for any resulting harm to someone else.
If you're looking for more specifics on New Jersey's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>If you're thinking about filing a medical malpractice lawsuit in Colorado, the first law you need to be aware of is the statute of limitations, which puts a strict limit on the amount of time you have to get your case started in the state's civil court system.
The statute of limitations for medical malpractice cases (which you can find at Colorado Revised Statutes section 13-80-102.5) gives you two years to get your lawsuit filed, starting from when the harm was inflicted or when you discover—or could reasonably have been expected to discover—that you were harmed by a medical error. The law goes on to say that you must get your case filed within three years of the alleged malpractice regardless of when it was discovered, unless:
Finally, in Colorado, any lawsuit brought on behalf of a minor who was younger than six years of age at the time of the alleged medical malpractice must be filed before the child’s eighth birthday.
If you wait too long to get your lawsuit started—in other words, you try to file it after the time limit has already passed—the court will almost certainly refuse to consider your claim (unless a rare exception acts to extend the deadline). That’s why it’s so important to comply with the statute of limitations.
A Colorado medical malpractice plaintiff (or the plaintiff's attorney) must, within 60 days of serving the lawsuit on the defendant(s), file a "certificate of review" pertaining to each health care professional named in the case. The court might grant extra time to get the certificate filed if the plaintiff can show "good cause" for an extension.
This certificate must state that:
If the defendant health care professional is a physician, the certificate of review must include a declaration that the consulted expert meets Colorado's legal qualifications for testifying as an expert witness in medical malpractice lawsuits against doctors. Among other things, the expert must be a licensed physician in the same (or a similar) specialty as the defendant. If the defendant is a professional other than a physician, the certificate must still declare that the consulted expert is competent to express an opinion about the alleged negligence in the case, based on the expert's training, education, knowledge, and experience.
When a certificate of review is required, failure to file one will almost certainly result in the dismissal of your medical malpractice lawsuit.
Yes. Like a lot of other states, Colorado has passed laws that limit the amount of compensation a patient can receive even after a jury has found that an error by a doctor or other health care professional caused the patient’s injuries.
Colorado is a little unique in that the state actually has two caps on medical malpractice damages, both discussed in Colorado Revised Statutes section 13-64-302.
First, there is a $1 million “umbrella” cap on the total amount of compensation that a medical malpractice plaintiff can receive, including economic losses (such as payment of past and future medical bills, as well as compensation for lost income and reduced earning capacity) and noneconomic losses (which we’ll explain in more detail below).
A plaintiff might be able to get around Colorado’s $1 million cap if there is good cause for doing so and the court finds that economic damages would be more than the limit, and that application of the cap would be unfair under the specific circumstances of the case. But any amount in excess of $1 million would be limited to compensation for economic damages (typically for future medical care and future earnings).
The second damages cap in Colorado is a maximum of $300,000 for noneconomic damages in a medical malpractice case. Noneconomic damages are those that aren’t as easy to quantify or capture with a dollar amount. That includes compensation for “pain and suffering,” loss of enjoyment of life, fear and anxiety, sleeplessness,and other subjective negative consequences of the defendant’s medical malpractice. Colorado law specifically includes physical impairment and disfigurement in noneconomic damages subject to the cap.
This article provides a brief summary of some of the Colorado laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Colorado medical malpractice attorney will have the answers.
]]>In this article, we'll look at the most important Louisiana laws that could have a big effect on a medical malpractice lawsuit.
A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. There are different deadlines depending on the kind of lawsuit you want to file.
Like a lot of states, Louisiana has a dedicated statute of limitations for medical malpractice lawsuits. Louisiana Revised Statutes section 9:5628 specifies that injured patients must file their claim within one year of the health care provider's negligent action (or failure to act) that forms the basis of the case. Or, when the patients don't know right away about the malpractice, the case must be filed within one year after they discovered (or reasonably could have discovered) it.
Keep in mind that if you are relying on this so-called discovery rule, as the plaintiff you have the burden of proving that you did not discover, and you could not have reasonably discovered, the defendant's negligence more than a year before you filed your lawsuit.
The Louisiana law goes on to mandate that every medical malpractice lawsuit "be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect." This is known as a "statute of repose," and it bars lawsuits that are filed more than three years since the malpractice occurred, no matter how serious the medical error might have been, and regardless of whether the patient had a reasonable opportunity to discover that error and the resulting harm.
The "clock" for Louisiana's medical malpractice statute of limitations is paused (or "tolled" in legalese) when a plaintiff submits a request for review from a medical review panel, which the state requires in almost all medical malpractice cases before filing a lawsuit (more on that below).
Having read all of this, you might be wondering what happens if Louisiana's statute of limitations deadline has passed, but you try to file your medical malpractice lawsuit anyway. In that scenario, it’s a safe bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit.
Before you file a medical malpractice lawsuit in Louisiana, you must submit your proposed complaint to a medical review panel and wait for an opinion from the panel on the validity of your claims. There are just a few exceptions to this requirement, including when:
You must request this review before the deadline for filing a lawsuit (as described above). Once you've submitted your request, the statute of limitations is suspended unless:
The suspension of the filing deadline will continue until 90 days after the panel:
Once any of these circumstances happens, you will be free to file your lawsuit, as long as the filing deadline hasn't passed. The same is true if the panel doesn't reach an opinion within a year after the panelists were selected.
The medical review panel will consist of three licensed health care providers, along with an attorney who will manage the process. The injured patient and the defendant health care provider(s) will submit evidence to the panel, such as medical records, reports from medical experts, and transcripts of depositions (when lawyers question witnesses under oath).
Based on its review of this material, the panel will issue a report with its opinion as to whether the evidence supports a conclusion that the defendant did not meet the appropriate standard of care when treating the patient. In the alternative, the panel may conclude that there is a significant factual question regarding liability for your injuries that must be decided by a judge rather than an expert. The report must include the panel's reasoning, as well as other detailed findings about the patient's injuries if the panelists believe the evidence points to a medical error.
If the plaintiff goes ahead with the lawsuit after the review process, the panelists could be called to testify as witnesses during the trial, and the panel's report may be admitted as expert evidence. However, that doesn't necessarily mean that the jury will agree with the panel's opinion.
Like a lot of states, Louisiana has a law on the books that "caps" medical malpractice damages, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice. But unlike most of the other states with these limits, Louisiana has enacted a cap on the total amount of compensation available to a plaintiff, not just a limit on certain categories of damages (like those related to the patient's pain and suffering).
Specifically, Louisiana Revised Statutes section 40:1231.2 limits total damages awards to $500,000 in medical malpractice cases, with the exception that costs of future medical care are not subject to the cap.
The Louisiana Supreme Court has reviewed the constitutionality of this cap and upheld it in the face of challenges by medical malpractice plaintiffs.
One twist to this cap is that any amount over $100,000 will be paid out through the Louisiana Patient’s Compensation Fund, an insurance-type fund that covers all state health care providers (public hospitals and associated physicians), as well as private doctors and other health care providers who have met certain eligibility requirements.
If you're looking for more specifics on Louisiana's medical malpractice laws and how they apply to your potential case, it could be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>With some exceptions, you aren't allowed to file a medical malpractice lawsuit in Indiana's civil court system without first getting an opinion on your case from a medical review panel. In order to start that process, you need to file a proposed complaint with the Indiana Department of Insurance before the deadline for filing a lawsuit (discussed below).
After selection of the panel members (three health care professionals plus one attorney who will act as chairperson), you and the defendant (the health care provider you want to sue) will submit written evidence, such as relevant medical records and transcripts of depositions with medical experts and other witnesses. After reviewing the evidence, the panel will issue an opinion as to whether the evidence supports a conclusion that the defendant failed to meet the appropriate standard of care when treating you, if the defendant's actions were a factor in causing you harm, and, if so, whether (and to what extent) you were disabled or permanently impaired as a result. Or the panel's opinion might simply state that there are significant factual questions that a jury or judge should decide.
If you decide to go ahead with your court case after the review process is done, you must file a lawsuit within 90 days after receiving the panel's opinion. The panel's opinion may be admitted as evidence at the trial, but it won't be considered conclusive when it comes to the health care provider's liability or the nature and extent of your injuries.
You may avoid Indiana's medical-review requirement if:
Generally, once you've declared that you won't ask for damages over $15,000, you won't be able to receive more than that in a settlement or a court award after trial. But if, after you filed the lawsuit, you get new information revealing that your injuries are worse than you thought (requiring compensation over the $15,000 limit), you may file a motion to have your lawsuit dismissed and present a new proposed complaint for a medical panel review. In that case, you'll have an extra 180 days beyond the standard two-year deadline to file your proposed complaint.
This is a just quick summary of the process for a medical panel review in Indiana. You can find more information on the state's official page on medical review panels. And for even more detail, the laws discussed here are at Indiana Code §§ 34-18-7-1, 34-18-8-4 through 34-18-8-6, 34-18-10-17, 34-18-10-22, and 34-18-10-23 (which you can find by searching the Indiana Code on the Library of Congress Guide to Law Online).
A statute of limitations is a state law that sets a strict limit on the amount of time you have to go to court and file a lawsuit after you have suffered some kind of harm or loss. If you miss the deadline, your case will probably be dismissed, putting an end to your chances of getting compensation for your losses.
Indiana has a specific statute of limitations for medical malpractice lawsuits. Indiana Code section 34-18-7-1 says that you must file a medical malpractice claim within two years after the alleged medical error happened.
However, Indiana's courts have recognized that the statute of limitations might be extended in some cases when you can prove that you couldn't have discovered the defendant's alleged negligence and your resulting harm in time to file your complaint before the deadline. The length of the extension will depend on the "discovery date" (when you learned about the malpractice or learned facts that should have led you to discover it). If the discovery date came after the deadline had already passed, you'll typically have two years to file your complaint. But courts will only give you a "reasonable" amount of time to file if you discovered or should've discovered the malpractice shortly before the standard two-year deadline.
Patients who were younger than six years of age at the time of the alleged medical malpractice have until their eighth birthday to file a lawsuit. This is true even for newborns who were harmed by birth-related medical malpractice.
Once you file a proposed complaint for a medical panel review (which you must do before the two-year deadline), the statute of limitations for filing the lawsuit is paused. Then, if you decide to go ahead with the legal case after the review process is complete, you must file the lawsuit within 90 days after you receive the panel's opinion.
If have questions about how Indiana's statute of limitations and medical review requirements apply in your particular situation, you should speak with an experienced medical malpractice attorney who can explain the ins and outs of these complicated laws. (And if you're worried about the cost, see the results of our survey on how—and how much—medical malpractice lawyers charge.)
Like a lot of states, Indiana has a law that limits or "caps" the amount of money that a plaintiff can receive even after a successful medical malpractice lawsuit against a negligent health care provider.
But unlike most other states with these laws, Indiana's "damage cap" applies to the total amount of compensation that an injured patient can recover—not just to certain categories like noneconomic damages (which include compensation for things like "pain and suffering").
Indiana has periodically raised the damages cap. In cases where the medical error happened between July 1, 2017, and June 30, 2019, the cap is $1.65 million. The limit is currently $1.8 million for cases where the malpractice occurred after June 30, 2019. (You can find the cap for earlier cases at Indiana Code § 34-18-14-3.)
]]>Like a lot of states, Maryland has several medical malpractice lawsuit requirements, including a specific statute of limitations for these cases. But first, some background for readers who may not be fluent in "legalese": A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of harm (such as an injury or a financial loss). There are different deadlines depending on the kind of case you want to file.
Maryland’s statute of limitations for medical malpractice cases can be found at Maryland Code, Courts & Judicial Proceedings, section 5-109. The law says that a medical malpractice claim must be filed within five years after the injury happened, or within three years after the plaintiff (the injured patient) discovered or reasonably could have discovered the injury, whichever comes first.
This same law spells out special deadlines when the patients were younger than 11 at the time of the medical negligence. But the Maryland Court of Appeals has held that those deadlines in the law (when the patient turns 11 or 16, depending on the circumstances) violate the Maryland Declaration of Rights. Under the court's ruling, whenever a patient was younger than 18 at the time of the injury, the filing deadline “clock” starts when the patient turns 18 (Piselli v. 75th Street Medical, 808 A.2d 508 (Md. Ct. App. 2002).)
Finally, if the patient was mentally incapacitated when the alleged malpractice happened, the filing deadline will most likely be three years after the mental disability ends. That's according to standard exceptions applying to the statute of limitations for most kinds of civil cases in Maryland, found at Maryland Code, Courts & Judicial Proceedings, section 5-201 (2022).
Having read all of this, you might be wondering what happens if you try to file your medical malpractice claim after the statute of limitations deadline has already passed (and no exception applies to alter or extend the filing deadline). In that situation, it’s a safe bet that the doctor or health care facility you’re trying to sue will ask to have your claim dismissed, the court will grant the request. That would be the end of your case—which is why it's so important not to miss the deadline.
Within 90 days after filing a medical malpractice claim in Maryland, you'll need to file a certificate in which a qualified medical expert swears under oath that he or she has reviewed your claim and believes both of the following:
If you don't file this certificate, your claim will probably be dismissed. However, you may ask the judge to modify or completely waive the certificate requirement. The judge may grant your request if you've provided a good reason.
The expert-certificate requirement is spelled out in Maryland Code, Courts & Judicial Proceedings, sections 3-2A-04 and 3-2C-02 (2022).
Anytime you have a medical malpractice claim in Maryland that involves alleged damages over a certain limit ($30,000), you have to meet special requirements. First, you must file the initial claim and the expert certificate with Maryland's Health Care Alternative Dispute Resolution Office, rather than directly in court.
If you don't want your claim to go to arbitration—the default for these larger claims—you will need to file an written election to waive arbitration, within 60 days after the defendant health care provider(s) filed their own expert certificates. (The defendants may also choose to waive arbitration.)
Then, within 60 days after the arbitration waiver has been filed, you must file your medical malpractice complaint with the court. If you miss that 60-day deadline, a defendant may ask to have your case dismissed. The judge will grant that request if the delay in filing the complaint caused some harm to the defendant. That will be the end of your medical malpractice lawsuit.
These requirements are outlined in Maryland Code, Courts & Judicial Proceedings, sections 3-2A-02, 3-2A-04, and 3-2A-06B (2022).
Like a number of states, Maryland has a law that places a "cap" on certain kinds of damages (compensation for losses resulting from the medical error) that are available to an injured patient who has been successful with a medical malpractice claim. Maryland's cap applies to noneconomic damages in any malpractice claim arising from the same medical injury, regardless of how many defendants (hospital, doctor, or other licensed health care provider), claimants, or beneficiaries there are.
This cap, which is set by Maryland Courts & Judicial Proceedings Code section 3-2A-09, varies depending on when the injury happened. For injuries that happened in 2022, the cap is $860,000. The limit increases by $15,000 each year. That means, assuming no future legislative changes, you can add $15,000 per year for injuries that happen after 2022 and subtract that same amount per year for injuries that happened earlier.
Note that Maryland has a special cap for medical malpractice cases involving wrongful death, where there are two or more "claimants or beneficiaries." In those cases, according to section 3-2A-09, total noneconomic damages for all actions cannot exceed 125% of that year's cap (as listed above), "regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants."
So, what are noneconomic damages in a medical malpractice case? It is a category of damages that includes compensation for the plaintiff’s pain and suffering, anxiety, loss of enjoyment of life, scarring, and other negative effects of the medical negligence. These kinds of damages aren’t easily captured by a dollar figure.
It’s important to note that Maryland's cap has no effect on economic damages resulting from medical malpractice. Those include compensation for past medical expenses, payment for ongoing medical care, reimbursement for lost income, and compensation for any harm to the plaintiff’s ability to earn a living.
If you're looking for more specifics on Maryland's medical malpractice laws and how they apply to your potential case, it could be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>First, some background for readers who may not be fluent in the language of "legalese": A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit.
Kentucky’s statute of limitations for medical malpractice lawsuits is at Kentucky Revised Statutes section 413.140(1)(e), which says that this kind of case must be filed within one year "after the cause of action accrued." The next logical question is, when does a medical malpractice cause of action "accrue" in Kentucky? Another part of the same law (in subsection (2)) provides the answer: in medical malpractice cases, "the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered." In other words, once you know (or should know in the eyes of the law) that you were harmed by a medical error, you must file your lawsuit within one year.
The statute includes a larger catch-all filing deadline (known as a "statute of repose" in legalese) of five years from the date of the alleged negligence, regardless of the discovery date. But the Kentucky Supreme Court ruled that this statute of repose violates the state constitution's "open courts" provisions by potentially cutting off plaintiffs' right to seek a remedy for their injuries in court before their cause of action has accrued (McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky. 1990)). The upshot of this holding is that the "clock" for the one-year statute of limitations doesn't start until the discovery date, even if that's more than five years after the incident that led to your injuries.
Having read all of this, you’re probably wondering what happens if you file your lawsuit after the one-year statute of limitations has expired. In that situation, you can assume that the defendant (the doctor or hospital you’re suing) will ask the court to dismiss the case, and that the court will grant the motion. Once that happens, that’s the end of your lawsuit. So you can see why it’s important to pay attention to the Kentucky statute of limitations and understand how the deadline applies to your situation.
Briefly (from 2017 to 2019), Kentucky law required people with medical malpractice claims to obtain an opinion from a medical review panel about the merits of their case before they could file a lawsuit in court—a process that could take months. Here again, the Kentucky Supreme Court held that the laws violated the Kentucky Constitution by delaying access to the courts (Commonwealth of Kentucky v. Claycomb, 566 S.W.3d 202 (Ky. 2018)).
After the court struck down the laws concerning the mandatory, pre-filing medical review process, the state's legislature enacted a different law, at Kentucky Revised Statutes section 411.167, which simply requires plaintiffs to file a "certificate of merit" along with their complaint (the initial document that starts the lawsuit when it's filed with the court). The certificate of merit is an affidavit declaring that:
However, the law does allow for some alternative affidavits explaining why it's not possible or appropriate to get this expert opinion by the time the lawsuit is filed. For instance, the plaintiff may file an affidavit stating that:
There are very few medical malpractice cases that won't require expert witnesses. Juries almost always need to hear testimony from medical experts to understand and make findings on issues such as the appropriate standard of care, whether the health care provider negligently failed to provide that care, and whether that failure actually caused the plaintiff's injuries. In some rare cases, however, lay jurors can presume the health care provider was negligent without an expert's opinion, such as when a scalpel or sponge is left in a patient's body after surgery.
A number of states have set a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. These caps mean that, even when a plaintiff establishes the defendant’s liability for malpractice, there is a limit on the actual amount of damages the jury can award, regardless of the extent of the plaintiff’s specific losses.
There is currently no cap on medical malpractice damages in Kentucky (including for things like pain and suffering), so an injured patient is free to recover for all financial losses that can be attributed to the defendant’s malpractice.
This article provides a brief summary of some of the Kentucky laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Kentucky medical malpractice attorney will have the answers.
]]>Does Florida cap medical malpractice damages?
In statute, yes. In practice (for now), no. Like many other states, Florida has a number of laws on the books that limit or “cap” certain damages that are available to a medical malpractice plaintiff who has been successful in a lawsuit against a doctor or other health care professional.
As is true in most states, Florida’s medical malpractice damage caps apply only to a plaintiff’s noneconomic damages. That means compensation for things like pain and suffering, mental anguish, anxiety, loss of companionship, scarring, disfigurement, and other subjective losses stemming from the defendant’s malpractice. These caps do not apply to an injured patient’s economic damages. In other words, there is no limit on the amount of compensation a medical malpractice plaintiff can recover for past and future medical care necessitated by the malpractice, lost income, lost future earning capacity, and any other measurable economic losses attributable to the defendant’s malpractice.
Florida also uses different caps for “medical practitioners” (cases involving errors by doctors and other care providers) versus “non-practitioner” defendants. In medical malpractice lawsuits against practitioners, the Florida statute (Fla. Stat. § 766.118) sets the cap at $500,000 in most cases. However, the cap goes up to $1 million if the malpractice caused death or a vegetative state, or in certain cases involving catastrophic injuries with particularly severe noneconomic damages. In cases involving nonpractitioner defendants, the law caps noneconomic damages at $750,000 or $1.5 million.
However, in a June 2017 decision, the Florida Supreme Court ruled that the caps set by this statute are unconstitutional. In North Broward Hosp. Dist. v. Kalitan, the state's highest appellate court found that the limits "arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries," because the same $1 or $1.5 million limit in Fla. Stat. § 766.118 would apply to someone who loses a hand (which counts as a catastrophic injury in the law's definition) and to someone left in a permanent vegetative state. Therefore, the law violated the Florida constitution's equal protection clause.
by: David Goguen, J.D.
Under what's known as the "discovery rule," Arizona courts have held that "the cause of action accrues" in a medical malpractice case when the plaintiff (the patient who's suing) knows, or should reasonably know, that a negligent medical error caused the patient's injuries or losses.
Keep in mind that when you are relying on the discovery rule, it will be up to you to prove that you did not learn that you had a medical malpractice claim—and could not have discovered that if you had exercised reasonable diligence—until less than two years before you filed your lawsuit. That may be difficult to prove if, for example, you experienced unexpected medical problems after treatment that should have alerted you to the possibility of your doctor's negligence, but you didn't investigate or take action for more than two years.
There are limited circumstances that will extend the two-year deadline for filing a medical malpractice suit. For instance, the "clock" is paused (or "tolled" in legal jargon) while the plaintiff is under the age of 18 or is mentally disabled.
Unless one of these exceptions applies, if you file your lawsuit more than two years after the medical error happened, the health care provider that you're trying to sue will likely file a motion asking the court to dismiss the case. And if the judge finds that you waited too long, your case will almost certainly be dismissed.
So it’s critical that you pay attention to the two-year statute of limitations and speak to a lawyer as soon as you have reason to believe that you may have suffered harm because of medical malpractice. (Learn more about the basic requirements for a medical malpractice claim.)
]]>A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. Like most states, Ohio has a dedicated statute of limitations for medical malpractice lawsuits. The law, at Ohio Revised Code section 2305.113, says that prospective plaintiffs must get their lawsuits filed in the state’s civil court system within one year after the the underlying medical error occurred.
Ohio courts have held that this one-year period starts when you discover the injury (or reasonably should have discovered it) or when your doctor-patient (or provider-patient) relationship has ended, whichever occurs later. No matter when either happens, however, section 2305.113 sets an outside four-year deadline for filing medical malpractice lawsuits.
There are exceptions to the strict one-year/four-year deadline in section 2305.113.
First, if you could not have discovered the injury ("in the exercise of reasonable care and diligence") within three years after it happened, but you ultimately learn about it before the end of the four-year period, you may file the lawsuit within one year after your discovery.
Second, even if the four-year period has gone by, you may file a medical malpractice lawsuit within a year after you discover (or reasonably should have discovered) that a foreign object was left in your body during a medical procedure.
Third, the one-year deadline may be extended by nearly six months if you send a formal notice (by certified mail) letting the prospective defendants know that you intend to sue them for medical malpractice. The defendant must receive the notice before the expiration of the one-year deadline, but then you have 180 days to file the lawsuit. So you could technically give the defendant notice on day 364 of the 365-day deadline, and buy yourself around six more months to actually get the complaint filed in court.
(You can find section 2305.113, along with the other Ohio law discussed below, at the Library of Congress Guide to Law Online.)
What happens if the medical malpractice statute of limitations deadline has passed, and you try to file your lawsuit anyway? It’s a safe bet that the doctor or health care facility you’re trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit.
Ohio Rule of Civil Procedure 10(D)(2) says that any medical malpractice lawsuit filed in the state's courts must be accompanied by an "Affidavit of Merit" from an expert witness (usually a doctor or other licensed health care professional) who declares under oath that the expert:
A medical malpractice complaint that is unaccompanied by an Affidavit of Merit is subject to dismissal. However, the court is less likely to dismiss a lawsuit filed with an affidavit that does not meet all of the requirements of Rule 10(d)(2). Also, plaintiffs who need more time to get the affidavit together may request an extension to file it.
Like lawmakers in a lot of states, the Ohio legislature has passed a statute that places a limit or "cap" on the amount of compensation that can be awarded to a plaintiff who has been successful in a medical malpractice lawsuit. In other words, even after a jury holds a defendant liable for malpractice, this law kicks in to cap the actual amount that the plaintiff will end up getting.
First, it’s important to understand the two main types of damages in medical malpractice cases: economic and noneconomic.
Economic damages include payment of past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses stemming from the malpractice.
Noneconomic damages include compensation for things like pain and suffering, emotional distress, and the loss of enjoyment of life that result from the defendant’s medical malpractice. Noneconomic damages are often described as more "subjective" because they tend to vary from plaintiff to plaintiff, and they’re not so easy to capture with a dollar amount.
Ohio's medical malpractice damages cap applies only to noneconomic damages. Under Ohio Revised Code section 2323.43, noneconomic damages in a medical malpractice case may not exceed the greater of $250,000 or three times the plaintiff's economic damages—with an overall maximum of $350,000 per plaintiff (or a total of $500,000 in any case where there is more than one plaintiff).
The cap will be bumped up to $500,000 per plaintiff or $1 million per case if the malpractice caused certain permanent and/or catastrophic injuries.
If you're looking for more specifics on Ohio's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>You can find Florida’s statute of limitations for medical malpractice lawsuits at Florida Statutes section 95.11(4)(b). This law says that you must file a medical malpractice lawsuit within two years after you discovered the alleged medical error, or after you should have discovered it through "due diligence."
There is also an outside deadline of four years from the date of the alleged medical malpractice, regardless of when you actually discovered the harm or should have done so. However, there are exceptions to this four-year deadline for fraud and for cases involving very young children. Also, the two-year deadline may be extended under certain circumstances, as discussed below.
If the medical provider prevented you from discovering the medical error through fraud, concealment, or intentional misrepresentation about the facts, the statute of limitations is extended two years from the time you finally learned of the injury or, at the latest, seven years after the incident.
A medical malpractice claim brought on behalf of a young child may be filed after the expiration of the four-year deadline (or the seven-year deadline in cases of fraud), as long as it's filed before the child's eighth birthday.
When you file a medical malpractice lawsuit in Florida, your lawyer must attach a certificate swearing that the attorney has conducted a reasonable investigation into your case, and that as a result, the lawyer has a good-faith belief that the grounds for medical malpractice exist in your case. If you need more time for this step, you may file a petition for an automatic 90-day extension of the statute of limitations, as long as the deadline hasn't already passed.
After your attorney has conducted the investigation, Florida law requires that you serve the defendant(s) with a notice that you intend to sue for medical malpractice. That notice sets off a 90-day period for the defendant to evaluate and respond to your claim. The statute of limitations is paused (or "tolled" in legalese) during that period; in fact, you aren't allowed to file your lawsuit until the 90 days is up.
]]>Like a lot of states, Texas has a specific statute of limitations for medical malpractice cases. You can find this law at Texas Civil Practice and Remedies Code section 74.251. The key provision of this statute says:
“No health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.
So, starting from the day on which you suffer some type of injury or harm because of medical malpractice, you have two years to go to court and get your lawsuit filed. Or, if the harm occurred as part of an ongoing course of health care treatment, the two year “clock” doesn’t start running until that course of treatment is concluded.
Texas also has a rule in place that says once more than 10 years have passed since the alleged medical error occurred, you will have lost your right to file a medical malpractice lawsuit in Texas. This is known as a “statute of repose,” and it acts as something of a larger catch-all filing deadline.
And finally, a note on medical malpractice lawsuits that are filed on behalf of young children: In Texas, when a child under the age of 12 is the plaintiff, a medical malpractice lawsuit must be filed by the child’s 14th birthday.
]]>Like a lot of states, Vermont has a dedicated statute of limitations for medical malpractice lawsuits. But first, readers who aren't all that fluent in the language of "legalese" could probably use a little background information. A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. The deadline is almost always expressed in years, and there are different time windows depending on the kind of case you want to file.
Vermont’s statute of limitations for medical malpractice cases, which is codified at Vermont Statutes Title 12 section 521, specifies that this type of case "shall be brought within three years of the date of the incident or two years from the date the injury is or reasonably should have been discovered, whichever occurs later." It's important to note that if you are relying on the "discovery" portion of the statute, as the plaintiff you have the burden of proving that you could not have "reasonably" discovered the malpractice until you actually did.
There is a larger catch-all deadline for filing a medical malpractice lawsuit in Vermont, which says that this kind of case must be filed "not later than seven years from the date of the incident." This is known as a "statute of repose," and it applies regardless of whether the patient had a reasonable opportunity to discover that he or she was harmed by a medical error. The key exception to this larger seven-year deadline is cases where a foreign object was left in a patient (after a surgical procedure, for example). In those situations, according to the Vermont statute, "the action may be commenced within two years of the date of the discovery of the foreign object, "and the larger seven-year deadline does not apply.
Vermont’s law makes clear that the time limit is very lenient in cases where the medical error was covered up via fraud: "No statute of limitations shall limit the right to recover damages for injuries to the person arising out of any medical or surgical treatment or operation where fraudulent concealment has prevented the patient's discovery of the negligence."
Finally, if Vermont's statute of limitations deadline has passed, and you try to file your lawsuit anyway, it’s a safe bet that the court will dismiss the case. That's why it's so important to understand and comply with the medical malpractice statute of limitations.
If you want to file a medical malpractice lawsuit in Vermont's civil court system, state law (specifically, 12 V.S.A. section 1042) says that the initial complaint (the document that sets out the injured patient's allegations and gets the lawsuit started) must be accompanied by a "certificate of merit."
In this filed document, the injured patient (typically through his or her attorney) must declare under oath that he or she has had a consultation with a qualified medical expert who has reviewed the patient's case and has:
A few more important details on the "certificate of merit" filing requirement in Vermont:
A lot of states have laws on the books that place a "cap" on medical malpractice damages, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice.
There is currently no cap on compensation (economic, non-economic, or punitive damages) in medical malpractice cases in Vermont.
If you're looking for more specifics on Vermont's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.
]]>