How Long Do I Have to Sue for Medical Malpractice?

How Long Do I Have to Sue for Medical Malpractice? - If you think you have a medical malpractice case against a doctor or other health care provider, one of the first things to know is that every state has enacted a law that limits the amount of time you can wait before you get your lawsuit started in civil court.

Every state's deadline is different, but most range from two to four years, with outliers at either end. In a state that sets a two-year statute of limitations on medical malpractice cases (such as Georgia or Texas), you must file any medical malpractice lawsuit within two years of the health care provider's medical negligence. But as with most laws, there are exceptions (more on these later).

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What If the Medical Malpractice Statute of Limitations Deadline Has Passed?

What happens if you try to file a medical malpractice lawsuit in your state's civil court system after the statute of limitations "window" has closed? Your case will almost certainly be dismissed on the grounds that it's "time-barred" under the statute, and you'll lose your legal right to get a civil remedy (meaning, compensation in the form of money damages) for any harm you suffered as a result of the alleged medical malpractice.

So, it's crucial to understand the medical malpractice statute of limitations in your state, and how it applies to your case.

When Does the Clock Start "Ticking"?

For purposes of the statute of limitations, the "clock" usually starts on the date when the health care provider's error occurred. But most states carve out special rules for specific situations.

The "Discovery" Rule in Medical Malpractice Cases

The "discovery rule" is an exception to the standard time window in medical malpractice cases. States added this exception because many patients didn't become aware that they had been harmed by a health care provider's mistake until years after the filing deadline had passed.

The discovery rule may be phrased differently from state to state, but, in general, it allows the statute of limitations to be extended until the victim of medical malpractice either actually discovers that they have been harmed by medical malpractice, or they reasonably should have discovered that harm, under the circumstances.

Example of the Discovery/"Foreign Object" Rule

Let's say a patient underwent an operation on March 1, 2016, and the surgeon left a clamp inside the patient. That's a clear example of medical malpractice. But let's say the surgeon (and everyone else) was unaware of the mistake, and the patient had no problems until March 1, 2019, when he began having pain. An April 1, 2019 exam showed the clamp. The 2016 operation is the only one the patient has ever had. According to the discovery rule, even though the surgery occurred in 2016, the statute of limitations clock only began running on April 1, 2019. Note that many states (including California) have enacted specific "discovery"-style exceptions that apply to situations in which a foreign object (such as a medical instrument or a surgical sponge) is left in the patient's body.

Minors

Most states have enacted some version of a special statute of limitations deadline for minors (children under age eighteen) who have been harmed by a health care provider's malpractice. For example, the filing deadline might be as short as one year, and the "clock" might not start running until the injured person turns 18, even if the harm occurred ten years earlier.

The Statute of Repose

Although it's called different things in different states (and not all states have one on the books), a "statute of repose" sets an absolute deadline on the right to file a medical malpractice case in court, regardless of when the victim discovered (or should have discovered) that they were harmed by a health care provider's error. An example of a statute of repose (or a statute of repose contained within a medical malpractice statute of limitations) might be a provision stating that no lawsuit for medical malpractice may be filed more than ten years after the alleged medical error.

Medical malpractice lawsuits are hard to win, and complying with the statute of limitations is crucial. If you think you have a viable case, it's important to discuss your situation with an experienced attorney as soon as possible, to preserve your right to a legal remedy.

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