When a patient is injured because of a medical error, a medical malpractice lawsuit allows them to file a claim to recover damages. Damages can cover medical bills, loss of income, and pain and suffering caused by the doctor’s negligence. However, patients need to be aware that there is a time limit to filing a civil lawsuit. If the patient waits too long, they may not be able to recover damages, even with evidence the doctor caused the injury. Do not wait to find out about your legal rights or run the risk of having your claim denied. Talk to an experienced medical malpractice attorney about your rights and legal options after a malpractice injury.
What Is a Statute of Limitations?
The statute of limitations is the maximum time limit that a legal proceeding can be initiated in a civil court case. After the statute of limitations has passed, the claimant may have limited recovery options. Here, the statute of limitations concerned include the limit for personal injury claims and medical malpractice claims.
Each state sets its own statute of limitations for different causes of action. Statutes for legal time limits are introduced by state government representatives and approved by legislators. Different lobbying groups may have an interest in reducing the statute of limitations, including health insurance companies, doctor’s groups, hospitals, and the healthcare industry. When time limits are lowered, injury victims have less time to file a claim. This can protect the health care industry’s financial interests, even if it comes at the cost of patient care or helping injury victims recover damages.
Why is there a time limit on filing a lawsuit? It may seem unfair that an injury victim or the victim’s family only have a limited amount of time to recover damages, even if they have clear evidence of the doctor’s negligence. However, medical industry lobbying groups are interested in profit and avoiding any financial liability. Other reasons the medical industry may offer include:
- A shorter time limit encourages the victim to take immediate action
- It provides peace of mind for doctors
- Time limits reduce uncertainty
- Minimizes loss of evidence
- Memories fade over time
- Reduces litigation costs
However, shortened time limits may be doing a disservice to injury victims. Many injuries take time before their full extent is understood. For example, back pain caused by a negligent surgery could be more tolerable shortly after the injury but could get worse over time. Over the course of years, the injury victim may be left suffering chronic pain or physical disability. Failure to let the injury victim recover damages rewards the negligent doctor at the expense of the victim.
Time Limit to File a Medical Malpractice Claim
The time limit to file a claim in a medical malpractice case is more complicated than personal injury because there are different time limits. In general, a medical malpractice cause of action must be filed before the lesser of:
- 3 years from the date of discovery, or
- 5 years from the date of injury.
However, there may also be different time limits when the victim is a minor under the age of 11, or the claim involves a government employee or agency. Below, we will further explore the time limit and the exceptions to the statute of limitations for medical malpractice in Maryland.
Medical malpractice involves the breach of the standard of care by a doctor that causes injury to a patient who suffers harm. Every year, hundreds of thousands of people die from preventable medical errors in the United States. Medical malpractice can be caused by a number of mistakes, including:
- Delivery errors
- Improper prenatal care
- Surgical errors
- Delayed diagnosis
- Diagnostic errors
- Prescription errors
- Emergency room errors
- Unsafe hospital conditions
- Defective medicine or equipment
- Negligent intubation
- Anesthesia errors
- Plastic surgery negligence
When the Clock Starts Running After a Medical Injury
The time when the statute of limitations is calculated from is also known as when the statute of limitations is “tolled.” Generally, the clock begins to run when a medical injury occurs or the negligent act occurred. For example, if a patient undergoes surgery on July 1, 2020, and the doctor accidentally punctures the patient’s intestines, leading to infection, the clock may begin to run from July 1, 2020.
However, under the discovery rule, the statute of limitations generally does not begin to run until the injury is discovered, or should reasonably have been discovered. For example, a patient undergoes surgery on July 1, 2020, and the doctor negligently leaves a surgical sponge behind in the patient but does not notice at the time. The patient returns to the doctor a month later complaining of stomach pain but the doctor just prescribed some medication. A year later, on July 1, 2021, the patient goes to another doctor who identifies the left behind sponge as the source of the pain and infection. Under the discovery rule, the clock would begin to run from July 1, 2021.
When the injury victim is a minor child under the age of 18, the statute of limitations generally does not begin to run until the child turns 18. If a 17-year-old patient suffers a medical injury, the clock would not begin to run until the child’s 18th birthday. From that date, the patient would have 3 years to file a personal injury claim. However, there may be an overall time limit that restricts the patient’s ability to file a claim.
Later Discovery of a Malpractice Injury
It would be unjust to prevent a patient from recovering compensation for a medical error they did not discover until later. Under the discovery rule, the clock does not begin to run until the patient discovers the injury or the injury reasonably should have been discovered. Even if the patient did not discover the injury until later, the clock may toll if a “reasonable person” in a similar situation would have discovered the injury.
For example, a patient was complaining of pain after a surgery and the doctor sent the patient to get an imaging study to find out what happened. The patient never went to the imaging appointment and never followed up with the doctor. The patient continued to suffer pain but never went for medical care. If a jury believed a reasonable person would have followed up for care and discovered the source of the injury, the patient may be held to the reasonable person standard instead of when they actually discovered the cause.
Many medical injuries are not immediately discovered after they occur. It may take days, weeks, or even years before the patient becomes aware they suffered an injury that may have been caused by medical negligence. Among the most common malpractice cases where the injury takes time to discover include:
- Birth injuries
- Left-behind item injuries
Discovering Birth Injuries
Many types of serious birth injuries are never discovered until months or years later. When a baby suffers an injury in the womb or during delivery, the baby cannot communicate the injury to anyone. Some infant or prenatal injuries may not become known until the child begins to develop. This is common with brain damage or oxygen deprivation injuries like hypoxic-ischemic encephalopathy (HIE).
A child develops over time at their own rate but most children fall within a time range for physical, mental, and social development. Developmental delays could also indicate an underlying physical or medical problem, including brain injury or physical disability. The Centers for Disease Control and Prevention (CDC) have developmental milestones for children starting at 2 months of age up to age 5 years. This includes observations of the ways a child plays, learns, speaks, acts, or moves. It may take up to a couple of years before parents and doctors begin to understand the extent of a birth injury.
Retained Foreign Object Left Behind in Patient After Surgery
Medical malpractice victims may be shocked that a surgeon could leave an object behind in the patient’s body after surgery. Left behind foreign objects are known as “never events,” which are errors that are clearly identifiable, preventable, and have serious consequences for patients. Objects that have been left behind after surgery include:
- Surgical sponges
- Surgical gloves
Statute of Limitations for Minor Children
Under Maryland Courts & Judicial Proceedings Article § 5-109, an action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, shall be filed within the earlier of:
- Five years of the time the injury was committed; or
- Three years of the date the injury was discovered.
In many states, the statute is not tolled until the minor reaches adulthood, on their 18th birthday. However, in Maryland, the statute of limitations for minors is more restrictive. If the claimant was under the age of 11 years at the time the injury was committed, the time limitations shall commence when the child reaches the age of 11.
This means for minor children who suffer a birth injury, the statute of limitations extends until the child reaches age 14 to file a medical malpractice lawsuit. For example, a child is born on February 1, 2000, and suffers a birth injury from an improper delivery technique. The child turns 11 years old on February 1, 2011, and the clock begins to run. The child would have to file a personal injury claim before the age of 14, or by February 1, 2014.
If a child over the age of 11 but under the age of 18 suffers a medical malpractice injury, they are held to the same time limits as an adult. It seems unjust to hold a 12-year-old child responsible for knowing the limitations on their legal rights to file a lawsuit. However, a 12-year-old child who suffered because of a medical error would have to file a lawsuit the earlier of 5 years from the time of the injury or 3 years from the date of the injury discovery.
What Is the Statute of Repose?
Some states have a statute of repose for medical malpractice claims or other personal injury claims. A statute of repose is an overall time limit where no action may be filed after a certain amount of time. Even if the injury victim was a baby at the time or the patient did not discover the injury until years later, the statute of repose may limit recovery.
For example, a statute of repose may state that in no event can an action for medical malpractice be brought after more than a set number of years from the date on which the negligent or wrongful act or omission occurred.
In Maryland, this acts like a statute of repose but Maryland’s 5-year-limit on medical malpractice claims is considered a statute of limitations, based on its plain language and legislative history. The legislators did not intend to create an absolute time bar or grant of immunity for potential defendants in medical malpractice claims.
Exceptions to the Statute of Limitations in a Medical Accident
Exceptions to the statute of limitations in a medical error claim may include different dates for minor children and possible extensions with the discovery rule. However, you should just assume one of these exceptions applies in your case. Even with these exceptions, there are still overall time restrictions that may limit the time to file.
Shorter Time Limit Against Government Employees or Agencies
Some exceptions extend the time limit but other special circumstances may shorten the time limit to file a claim. In Maryland, a claim against the state or government agency may have special notice requirements. This acts like a statute of limitations. Failure to file the proper notice in time and with the required information may limit your claim. In many situations, a claim against the state or local government requires a notice of claim within 1 year from the injury. This may include claims against:
- The State of Maryland
- Government agencies
- Government employees
What Happens if the Statute of Limitations Has Already Passed?
The statute of limitations is harsh. If the statute of limitations has passed by even one day, it may be too late to file your claim. This means that if you go to the courthouse to file your medical malpractice case and you show up 1 minute after the courthouse closes, it may be too late.
If your claim is filed after the statute of limitations, your claim may be denied. Even if you have a good case that the doctor caused the injury and the injury resulted in millions of dollars in damage, filing too late may mean the difference between recovering compensation and recovering nothing. This is why it is so important to talk to someone about your claim as soon as possible.
Before you lose hope, talk to a medical malpractice attorney about your case. Your case may fall within one of the exceptions and you may not be too late. Contact an experienced med mal law firm to discuss your case and get legal advice on recovering compensation for your injuries.
Statute of Limitations Wrongful Death
Wrongful death law in Maryland provides that a person who caused the death of someone through a wrongful act can be held liable for damages. The victim of the injury may no longer be alive to file a claim against the negligent party. However, a representative can file a wrongful death claim on behalf of the deceased to recover damages for the estate or beneficiaries.
Damages in a wrongful death case can include the economic losses related to the fatal injury and some noneconomic damages. Economic damages may include the cost of the funeral, loss of financial support to the family, loss of benefits, and value of lost services. Non-economic damages included pain and suffering, mental anguish, and loss of companionship.
Under Maryland Courts and Judicial Proceedings § 5-108, upon accrual of a cause of action for wrongful death, an action shall be filed within 3 years. If the family waits more than 3 years to take action after the death of a loved one caused by medical malpractice, they may be prevented from recovering damages.
Statute of Limitations for Personal Injury Claims
A personal injury claim covers a wide variety of tort injuries and provides a cause of action for damage caused by negligence, strict liability, or intentional torts. Medical malpractice can be considered a type of personal injury but in Maryland, and other states, medical malpractice claims have a different statute of limitations. Some of the common personal injury claims include:
- Car accidents
- Slip and fall accidents
- Sports injuries
- Burn injuries
- Dog bites
- Workplace accidents
Under Maryland Courts and Judicial Proceedings § 5-108, upon accrual of a cause of action for damages involving wrongful death, personal injury, or injury to real or personal property, an action shall be filed within 3 years. The cause of action accrues when the injury or damage occurs.
Most personal injury claims in Maryland have to be filed within 3 years from the date of the injury or damage. There may be exceptions for personal injury caused by asbestos exposure, defective property improvement, or other limited exceptions.
Maryland Medical Malpractice Attorneys
Each state has its own statutes of limitations for medical malpractice. It is important to consult with a law firm with experience representing people in medical malpractice claims in your area. States also have other specific rules for civil lawsuits, including caps on some damages, filing requirements, and certificates of merit from a doctor.
In some cases, there are also special local rules for the county, courthouse, or even individual judge. A lot of medical malpractice understanding is gained through experience dealing with a specific doctor, hospital, judge, and opposing counsel. If you have a question about the doctor, hospital, or health care provider in your case, you may be able to get a free consultation with a medical error attorney with a record of success in your area.
Contact experienced trial attorneys who have successfully represented medical negligence victims and their families in Baltimore and across Maryland and D.C. Your legal team will advise you of your legal rights and can help you recover the maximum compensation available. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.