Medical malpractice is something none of us wants to experience, and thankfully most of us don’t. If you are considering filing a lawsuit for medical malpractice, there are some important things you need to know about the time you are allowed to file a legal claim.
Necessity of Limitations
In order to prevent lawsuits happening long after the fact and long after medical records have been destroyed, a law was created to limit the amount of time a claimant has to file a medical malpractice suit. This is known as the Statute of Limitations, and the length of time varies greatly by state.
Most states allow a claimant 2 years to file a claim for medical malpractice. Some states, such as Washington and California, allow 3 years, and in Louisiana the Statute of Limitations is just one year. The part of the law that varies the most is when to start counting those years. The two common methods of counting time toward the Statute of Limitations are the date of injury and the date of discovery.
Date of Injury
The date of injury is when the alleged malpractice occurred. This may be a surgery, specific treatment or the date a drug was prescribed. The date of injury can also be a later date such as when a bad reaction occurred such as drug reaction or complication from a surgery.
Sometimes an injury can occur but not be discovered until later. This is the case when a foreign object is left in the body after a surgery or discovery of a medical condition created by the initial injury. Becoming sterile after a surgery involving the abdomen is another example of an injury that might not be known until later.
Number of Years
While states have their own laws on how long a claimant has to file and from what starting point, there are similarities between the states. Alaska, for example, allows two years from the date of discovery. This is helpful in cases where a victim doesn’t realize the damage until later, perhaps after a period of recovery or when a foreign object is later discovered left inside the patient.
Other states, like Georgia, offer a little more leeway in the law. In Georgia, the time is counted either from the date of discovery or from the date the malpractice actually occurred. Pennsylvania and Oregon both allow 2 years after the occurrence of malpractice. As you can see, there is quite a bit of variation from state to state on when this time frame actually begins.
Age of the Victim
This clause applies to minors. In California, for example, a minor under the age of six has until their eighth birthday to file a claim. A child of one or two would have more than the standard three years to file under this clause. Oklahoma allows seven years for a child under the age of 12 and children over 12 have up to one year after they turn 18 to file a claim.
Other considerations that may affect the length of time you have to file a medical malpractice claim are whether or not you have sought continuous treatment, evidence or suspicion of fraud, and the presence of foreign objects.
Additional Frequently Asked Questions
- Can a Medical Malpractice Case Be Reopened After It Has Settled?
- If I Can Prove That the Defendant Violated the Standard of Care, Does That Mean I Win My Case?
- How Would a Doctor Testify Against Another Doctor in a Malpractice Lawsuit?
- Can I Sue If I Am Unhappy With The Outcome Of My Surgery?
- What Is Loss of Consortium In A Medical Malpractice Case?