The truth is that there is not a single, simple answer to how long is the medical malpractice statute of limitations. Every state has adopted its’ own statute of limitations laws.
For anyone who does not know, statute of limitations is the time limit within which a medical malpractice lawsuit must be filed or else the lawsuit can be dismissed without even considering whether or not there was malpractice. For instance, a state may have a 6 year statute of limitation for filing medical malpractice suits. If a suit is filed before the end of 6 years, then the case proceeds through the court system. If the suit is not filed until after the 6 years, then the case can be dismissed and the person filing the suit looses his/her case.
There are two aspects to medical malpractice statute of limitations. First there is the length of time. This is usually easy because state law will say that a lawsuit has to be filed within a set time, for example 2, 3, 4, 5, or 6 years.
The more complicated question is when does the time start to run? With the statute of limitations in a car accident case, the time clearly starts to run on the day that the accident occurred. But, in most medical malpractice cases, the patient doesn’t know that malpractice has occurred until sometime after the actual malpractice occurred. For instance, a doctor may commit malpractice during surgery, but the patient may not know for months or years afterward that the doctor’s actions during surgery actually caused the patient to have medical problems.
To try to insure that all patients have the full time limit within which to file a malpractice lawsuit, most states have adopted some form of the statute of limitations that says that time begins to run when the patient knew or should have known that malpractice was committed. In the above example, a doctor may commit malpractice during surgery, but the patient doesn’t learn until a year later that the patient’s medical problems may have been caused by something that was done wrong during the surgery. The statute of limitations would not begin to run on the date of the surgery, but would begin to run a year later when the patient discovered that his/her medical problems may have been caused by something done wrong during the surgery.
Another problem in determining when the time limit begins to run concerns people who cannot file lawsuits themselves. Children and mentally incompetent people are considered to be suffering a legal disability and cannot file lawsuits for themselves. Instead, they have to have a competent adult file the suit on their behalf. To make sure that they have the same time frame within which to file a medical malpractice case, the statute of limitations is tolled (or stopped) until the disability is removed. For children, that usually means that the time begins to run when they reach the age of eighteen and can file a lawsuit on their own behalf.
Because it can be tricky trying to determine when medical malpractice statute of limitations begin to run, if you even consider that there may have been malpractice, talk with a lawyer. Don’t take a chance on loosing your case simply because the time limit has passed.
This is general information only. If you have any questions whatsoever, talk with a lawyer licensed in your state.