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Each state has laws that limit the amount of time a patient has to file a medical malpractice claim. These “statutes of limitations” impose a deadline to file a medical malpractice case before losing the ability to claim damages and legal remedy.
Statutes of limitations can be complicated and confusing. The “clock” can start on the date of discovery of the injury, the date of occurrence of the injury, or the date of occurrence of a non-injurious negligent act that eventually led to an injury.
Why Is There A Deadline To File Medical Malpractice Cases?
Most legal cases have a “statute of limitations” that limits how long a victim has to bring a claim against the perpetrator. There are a number of reasons why states have laws limiting the amount of time to file a case. The primary reasoning behind statute of limitation laws is the fairness between both parties in the case. It allows for reasonable notice to the healthcare provider or hospital that may be sued for medical malpractice. If a doctor seriously injures a patient, the patient can sue for damages. But the patient cannot (in most cases) wait 20 years and surprise the doctor with a decades old claim that would be difficult to defend based on faded memories and missing records.
If a doctor makes a seriously negligent mistake, the goal of the patient’s lawsuit is to recover damages for the injury, and also to prevent that doctor from potentially harming someone else. Doctors with lawsuits against them may be more careful in the future about medical malpractice.
Statutes of limitations encourage victims of malpractice to file in a timely manner when the evidence for the case is still fresh and relevant.
How Long is the Medical Malpractice Statute of Limitations?
Statutes of limitations vary by state and by the type of injury incurred. There are a few similarities across these laws, in most states:
- The statute of limitations is either “from the date the injury was committed” or “from the date of discovery of the injury”
- Wrongful death cases have shorter statutes of limitations
- Minors are allowed to wait until the age of 18 for the clock to start on their time limitations.
Check your state’s unique laws to find out about the statute of limitations.
Date of Occurrence of a Medical Injury
The most common timeline for statute of limitations begins on the date of occurrence of the injury. If a doctor nicked a nerve during surgery, operated on the wrong body part, or left a sponge inside a patient, lawsuits concerning the resulting injuries usually need to be filed within a certain amount of time from the actual date those injuries first occurred.
If patients are aware of the injury within a reasonable amount of time, then they are required to follow the deadlines of their state’s statute of limitations. If the patients do not discover the injury for some time, they are usually allowed extended statutes of limitations.
Discovery of a Injury Caused by Medical Malpractice
While some medical injuries are obvious right away, others may take months or years to become evident. Victims of medical malpractice who do not discover their injury for some time are allowed an exception to the standard statute of limitations. Discovery rules may change from state to state, but usually they start the statute of limitations clock on the day the patient became aware of the injury instead of the day the injury first occurred.
The discovery rule doesn’t always refer to the actual moment a patient discovered a medical injury, it also includes when the patient reasonably should have discovered the injury. If doctors tell a patient that she should take certain actions (get an x-ray) because an injury may have occurred, and the patient fails to take those actions and discover the injury, then the court can rule that the date of discovery is the date the patient was informed to take further action.
An example of the discovery rule could include: An oncologist spots a potentially cancerous tumor in a patient, makes a note in the patient’s file, but does not inform the patient or any of the patient’s other doctors about the tumor. Two years later a nurse notices the note in the patient’s file, and informs the patient’s primary care physician. New scans reveal that the patient has an advanced stage of breast cancer. The patient can sue the oncologist for damages like medical bills and emotional suffering. In some states the statute of limitations is only two years, meaning the patient would have already lost their ability to sue the doctor. But under the discovery rule, the patient would have two more years to file (or the length of time allotted by the state) starting from the date they were informed of the error.
Medical Malpractice Statute of Limitations for Children Under 18 In Maryland
Minors, or children under the age of 18, are given special exceptions to the normal statute of limitations rules. The countdown clock for the statute of limitations does not begin for children until they become adults. The clock starts when they become adults. If an injury occurred when a child was 10, then in Maryland, the patient has three years after they turn 18 to file a medical malpractice case.
Younger patients should be aware that there are some unusual laws determining when a minor becomes an adult. The Maryland courts ruled in 2002 that minors become adults on the day before their 18th birthdays because the date of birth is already included in the age calculations.
Wrongful Death Statute Of Limitations For Medical Malpractice Cases
The statute of limitations for wrongful death claims depends on the circumstances of the injury and resulting death, and on the state’s unique laws for wrongful death.
Some states start the timeline for the statute of limitations at the time of death of the patient. Other states, like Maryland, keep the discovery rule with wrongful death claims and start the clock on the date of injury. This means that part of the statute of limitations could already have run at the time of death of the patient.
There is a second type of wrongful death claim called “survival action.” This claim can only be used with some malpractice injuries, and it allows the estate of the deceased patient to claim damages for injuries to the patient before they died. Survival action allows the estate to claim damages for economic losses as well as physical and emotional suffering the deceased patient went through before death.
Damages recovered through survival action are rewarded to the estate of the deceased patient, not to the family. Damages are only awarded to the family through the estate’s will or in accordance with state law. Family members cannot recover direct damages (like loss of consortium) under survival action.
Statute of Repose
Some states have a statute of repose rule that sets a definitive deadline for filing all malpractice cases regardless of when the injury is first discovered. The statute of repose varies across states, and some states do not enforce one at all. Usually statutes of repose set a 7 to 10 year limit on filing a medical malpractice case. That means that even if a patient discovered an injury 8 or 11 years after it first occurred, the patient would still be required to file their case within the statute of repose limitations. Once the time has run out on a statute of repose, the cause of action in a case is terminated, and the patient loses the ability to ever file an action for the case.
Foreign Object Left in Patient
Almost all states allow exceptions to standard statute of limitation rules (and to statutes of repose) if the patient was injured from a foreign object left inside the patient after surgery. This exception both accounts for the gross act of negligence of leaving surgical equipment in the patient, and allows the court to be clear on the complications that resulted from the negligence.
Maryland Statute of Limitations For Medical Malpractice Cases
In Maryland, medical malpractice claims must be filed within five years of the date the injury occurred, or within three years from the date the injury was discovered, whichever is earlier (§ 5-109). The date of discovery includes the day the plaintiff should have reasonably discovered the injury.
For minors the statute of limitations does not begin until the child turns eleven years old, but if the claim involves a foreign object left in the body or an injury to the reproductive system then the statute does not begin until the child turns sixteen years old. The rules for a minor ultimately depend on the type of injury.
Wrongful death claims in Maryland must be filed within three years of the death of the patient or within three years of when the patient should have discovered the injury (§ 3-904). Survival action claims—claims made by the deceased victim’s estate—are subject to the standard five/three year statute.
Maryland sets the statute of repose—the limit on how long claims can be filed—at five years from the date the injury occurred. That means that if an injury was discovered six years after it occurred, the victim can take no legal course of action.
Pennsylvania Statute of Limitations For Medical Malpractice Cases
In Pennsylvania, medical malpractice claims must be filed within two years. Pennsylvania has a “tolling statute” which means that the statute of limitations is “tolled” and does not begin until the plaintiff is aware of the injury or until the court deems it reasonable that the plaintiff should have known about the injury (§ 5524(2)).
Minors in Pennsylvania have their statute of limitations “tolled” until they turn eighteen, meaning the two-year limit begins on their eighteenth birthday. Generally, minors have until the age of twenty to file a medical malpractice claim.
Wrongful death claims in Pennsylvania are set to a two-year statute of limitations that begins on the date of death.
Pennsylvania has a statute of repose on malpractice claims that prevents claims that are filed after seven years. The statute of repose is not subject to any other statutes of limitations, and applies even when an injury is not discovered many years after it first occurred. One notable exception to this rule is an injury from a foreign body left in the patient.
New York Statute of Limitations For Medical Malpractice Cases
In New York, medical malpractice claims must be made within two years and six months of the date the injury occurred. If the injury occurred while undergoing treatment, the statute does not begin until the treatment course is completed. If a patient fails to file a malpractice claim within this deadline the patient loses all rights, with a few exceptions, to ever file for damages for the case (§ 214-a) .
Unlike most other states, New York does not have an extended statute of limitations for discovery of an injury. Foreign objects left in the patient are the only exception to the regular statute of limitations in the state.
Minors in New York have until their eighteenth birthday before the statute of limitations begins. This means minors injured by medical malpractice can file a claim until they are twenty years and six months old.
New York sets a ten-year statute of repose on all medical malpractice cases. Allowing for few exceptions, after ten years an individual loses their right to file a malpractice claim.
Washington D.C. Statute of Limitations For Medical Malpractice Cases
In Washington D.C., medical malpractice claims must be made within three years “from the time the right to maintain the action accrues.” Normally this means from the time the injury first occurred, but this can also mean from the date the patient discovered the injury or from the date the patient reasonably should have discovered the injury (§ 12-301(8)).
Minors in Washington D.C. have a “tolled” statute of limitations, meaning that the statute does not go into effect until the minor turns eighteen and becomes an adult. That means that usually minors have until their twenty-first birthday to file a medical malpractice claim.
The District of Columbia has a ten-year statute of repose on all medical malpractice cases. There are a few exceptions to this rule—including a foreign body left in the patient—but most cases will be discarded ten years after the date of injury, regardless of when the patient discovered the injury.
Exceptions to the Statute of Limitations
Statutes of limitations set base rules, but are fraught with exceptions and limitations. To best understand the statute of limitations for your case, you should speak with an experienced medical malpractice attorney. A malpractice attorney will review the facts of your case and help you determine if you still have a viable case.
Offer of Proof and Certificate of Merit
Most states require an Offer of Proof, also called a Certificate of Merit or Affidavit of Merit, to be filed before investigation on the case can begin. This certificate or offer usually includes testimony from a certified physician that negligence occurred in the case. It is a way of proving that the case is viable.
Finding an Experienced Medical Malpractice Attorney
It is important to file medical malpractice claims as quickly as possible to retain the strength of evidence and key witnesses. It can be impossible to file quickly when injuries are discovered late , when mistakes are revealed months or years after an injury, or when an injury occurs to a minor child.
Statutes of limitations are complex and are easy to get wrong. If you are filing a claim and are unsure of the statute of limitations for your case, you should contact a skilled medical malpractice attorney who can review the details of your claim and help you file a case.
In addition to statute of limitations deadlines, attorneys must also be aware of deadlines for a variety of other case-specific procedures like the offer of proof or certificate of merit. A medical malpractice attorney will understand deadlines specific to your case and help you file your claim.
When To Get Legal Help With Your Medical Malpractice Case
Individuals who wait too long to file a medical malpractice claim can lose their ability to ever recover damages for an injury. If you or a loved one has suffered an injury as a result of medical malpractice, you should contact a medical malpractice attorney as soon as possible to begin your case.
Injuries from medical malpractice can result in expensive medical bills and years of physical and emotional suffering. Pursuing your case with an experienced medical malpractice attorney will give you the best chance at recovering the compensation you deserve after an injury.
The attorneys and staff at Gilman & Bedigian understand the difficulties victims of medical malpractice face. Our office has a track record of success in recovering generous compensation for our clients. Call our offices today at (800) 529-6161 of schedule a free consultation online.