Legal professionals refer to laws placing time limits on filing court cases statutes of limitations. Different time limits apply to different types of claims, and the rules vary by state. Injured patients have an average of two years from the date they should have discovered their injury or illness to file medical malpractice litigation. However, special exceptions and defenses often arise in healthcare negligence cases.
Only a qualified medical malpractice lawyer in your state should analyze the time limits applicable to seeking financial recovery for healthcare neglect. Claims adjusters and medical professionals may not provide legal advice and seldom understand the special defenses and rules applied in complex malpractice cases.
Overview of Medical Malpractice Proceedings
Malpractice refers to negligence occurring when licensed professionals violate accepted practice standards in their specialties and harm their clients or patients. Medical malpractice claims arise when licensed healthcare providers, such as doctors, nurses, or hospitals, do not follow healthcare protocols while treating patients. These failures often include neglecting to order diagnostic tests, ignoring lab results, operating while fatigued, and rushing through doctor-patient interactions.
Studies indicate that most medical malpractice claims involve doctors who do not listen to or question patients about their symptoms or family history. Drug and alcohol addiction, long hours, and pressure to increase billable appointments often contribute to these life-altering medical mistakes.
The most common malpractice claims include:
- Missed diagnosis
- Prescription drug errors
- Gestation and birth mistakes
- Surgical and anesthesiology oversights
- Insufficient follow-up and case management
Actionable malpractice claims require patients to suffer new injuries (such as nerve damage after a negligently performed epidural) or a worsening underlying condition. Once patients discover the new or worsening injury or illness, they should immediately consult with a local injury lawyer to request a medical malpractice case analysis. Injured claimants must bring litigation within a specific timeframe, sometimes less than one year, to beat the statute of limitations applicable to medical malpractice lawsuits.
Understanding Statutes of Limitations Generally
Memories fade, injuries heal, and documents disappear over time, often making it more difficult to defend against legal claims years after an alleged injury. Statutes of limitations developed to benefit defendants, not injured claimants. They stop plaintiffs from blindsiding defendants with litigation years after the allegedly unlawful act and, more practically, reduce the likelihood of lost or destroyed evidence. Legislators also presume that claimants with actionable injuries and valid cases will file litigation quickly.
How Statutes of Limitations Work
Statutes of limitations only control the timeframe for filing legal cases (complaints) in the appropriate court. The injured plaintiff must sue all allegedly negligent defendants within a certain deadline (typically one to four years) after the injuring event or discovery of damage. The parties may litigate for years after that, but plaintiffs must start the case within the applicable limitations period.
Filing claims with medical malpractice insurers do not extend the statutes of limitations for bringing lawsuits. However, malpractice insurers sometimes delay negotiations as the limitations period approaches, trapping claimants into unwittingly waiving their claims.
Courts generally dismiss cases filed after the limitation period expires. Legal professionals call these time-barred cases. Dismissals based on the statute of limitations end the litigation with prejudice, meaning the claimant cannot generally bring another case arising from the same event. Malpractice insurers will not typically consider or settle time-barred claims, and injured claimants typically lose their financial recovery rights against negligent healthcare professionals.
Because most attorneys accept malpractice claims on a contingency fee basis (taking a portion of the financial recovery), lawyers rarely litigate time-barred cases or refile litigation dismissed with prejudice. However, numerous circumstances may extend or pause the statute of limitations in medical malpractice cases. A legal professional might still help malpractice claimants fight for medical negligence compensation even years after the injuring event.
Determining the Limitations Period in Civil Cases
Most states group civil legal claims into categories that set the applicable statute of limitations. These categories generally cover injuries, property, contract, defamation, fraud, abuse, wrongful death, and medical malpractice claims. The location of the unlawful act generally determines which state’s laws apply in healthcare neglect cases. For example, surgical mistakes occurring in Florida fall under Florida’s two-year statute of limitations for bringing medical error claims even if the patient lives in New York (2.5-year medical malpractice limitations period).
Applying the Statutes of Limitations in Complex Cases
Sometimes, multiple claims arise out of the same case. For example, nursing home neglect cases often involve medical malpractice, abuse, personal injury, healthcare fraud, wrongful death, and breach of contract claims. Each of these claims has different statutes of limitations, but attorneys recommend filing complete complaints within the shortest applicable timeframe. Failing to do so waives the time-barred allegations but does not impact the remaining causes of action.
If the medical negligence occurred in multiple jurisdictions, attorneys conduct a special conflicts analysis to determine the appropriate limitations period. Statutory conflicts may arise in telehealth and out-of-state laboratory error cases.
Medical malpractice claims may also involve multiple defendants, especially if two doctors missed the same diagnosis. Plaintiffs must calculate the statute of limitations as to each defendant. Suing the second doctor within the applicable time frame does not revive the initial misdiagnosis claim against the first physician. Qualified medical malpractice lawyers should review cases involving multiple jurisdictions or licensed healthcare professionals.
Traditional Events Tolling the Statute of Limitations
Various factors pause, extend, or reset the filing deadlines for civil cases. In legal terms, these events toll the statute of limitations. Tolling stretches the limitations period beyond the blackletter statutory timeframe.
The most common examples of tolling include:
- Starting the countdown only when the injured claimant reaches adulthood (18 years of age)
- Pausing the countdown if the negligence resulted in a coma or period of mental incompetence
- Stopping the statute during guardianship proceedings related to permanent disabilities
- Stopping the statute if one defendant files for bankruptcy during the limitations period (due to the automatic bankruptcy stay)
- Pausing the statute when the defendant fled the state to avoid liability or criminal prosecution
- Extending the statute if the defendant concealed evidence of the malpractice
- Giving claimants time to fix or refile litigation dismissed without prejudice
Courts add time to the listed limitations period in such cases. For example, a medical error resulting in a three-month coma and four months of cognitive rehabilitation adds seven months to the statutory limitations period. The above events stop the statute from expiring altogether, and claimants can defend their calculations during litigation.
Pursuing Litigation After the Statute of Limitations Expires
Plaintiffs may sometimes file civil litigation, including medical malpractice cases, after the applicable limitation period expires. Because lawsuit deadlines benefit defendants, the liable medical professionals must raise their timeliness concerns when the litigation starts. Defense attorneys typically move to dismiss these time-barred cases, but plaintiffs can oppose this request by raising waiver or estoppel arguments.
Waivers assert that the defendant abandoned their right to use the statute of limitations defense by responding to the litigation without asserting the issue. Estoppels ask the court to stop the defendant from benefiting from the statute of limitations because of their unjust conduct (such as promising a settlement and withdrawing the offer after the litigation deadline passes). If the statute of limitations expired, discuss waivers and estoppels with a local medical malpractice attorney.
When the Clock Starts Ticking on Common Medical Neglect Claims
Most personal injury cases start with an accident (such as a car crash, fall, or workplace trauma) resulting in immediate physical harm. The parties do not typically dispute when the statute of limitations begins running in these situations because the unlawful conduct and injuries occurred simultaneously. Some medical malpractice cases follow this traditional pattern (such as births or surgical errors leading to obvious trauma), but many do not.
Instead, most healthcare malpractice cases start with an underlying medical condition. Medical errors generally occur when patients receive treatment for these conditions, and the mistake aggravates the original condition or causes additional harm. Patients may not discover the malpractice until years after the medical error if it hides behind the original injury or illness. As such, litigations often dispute when the clock started ticking on the plaintiff’s claims.
Overview of the Discovery Rule
Different state laws dictate which events trigger the statute of limitations in medical malpractice cases, but most jurisdictions utilize the discovery rule. Under this legal principle, the statute of limitations starts running when the patient actually discovered (or reasonably should have discovered) the actionable injury or illness. Doctors often argue that plaintiffs should have discovered the malpractice shortly after the medical error. At the same time, injured patients typically claim they had no way of knowing about the mistake until years later.
Some jurisdictions address this common dilemma objectively by starting the clock when another licensed medical provider first communicates the claimant’s actionable diagnosis. Other states take more subjective approaches by starting the countdown when the patient’s symptoms reasonably should have led them to seek additional medical treatment.
The statute of limitations traditionally begins running in the following common medical malpractice cases.
Foreign Object (Surgical) Errors
From scalpels and clamps to gauze and sponges, negligent surgeons have unintentionally left foreign objects in patients. The body typically rejects the object immediately, and most patients do not leave the hospital before discovering this extreme error. When patients do leave, they typically seek help for debilitating pain and infections within a few weeks. Most states only give claimants one year from the date they should have discovered the object’s presence to file surgical malpractice claims. For example, the one-year clock starts running after an E.R. doctor returns with X-rays of the foreign object or doctors reopen the wound and discover the error.
Missed or Mistaken Diagnosis
Doctors often misdiagnose rare and hidden conditions, such as genetic and autoimmune disorders, during the initial consultation. Sometimes treating providers need to rule out more common conditions before considering a secondary diagnosis, ordering additional testing, or making referrals. Malpractice claims only arise when reasonably competent medical providers would have discovered the underlying condition by following standard healthcare protocols. Diagnostic errors account for the majority of medical malpractice payouts in the United States.
The most common reasons doctors negligently misdiagnose serious conditions include:
- Insufficient family and medical history taking
- Failure to order diagnostic tests
- Lack of thorough physical examinations
- No follow-up care
- Inadequate doctor-patient interactions
Misdiagnosis cases frequently lead to arguments over when the statute of limitations starts. Most jurisdictions follow the traditional discovery rule, but the parties often debate when patients should have known about the misdiagnosis. Doctors may continue treating patients for the wrong illness or tell patients they’re suffering from psychosomatic symptoms. In these cases, the parties often disagree about when the patient should have gotten a second opinion.
Some states take an objective approach, such as starting the clock when the patient receives the correct diagnosis from another medical professional. This approach often applies to malpractice claims involving misdiagnosed cancers and tumors. Other courts consider the patient’s testimony, including what their treating doctors told them, and ask juries to determine when the patient should have discovered the condition. In most misdiagnosis cases, the statute of limitations starts running when patients learn about their true conditions and not when the negligent doctor made the initial mistaken diagnosis.
Gestation and Birthing Errors
Special tolling statutes generally apply to childhood injuries, including birthing errors. Infants may suffer from oxygen deprivation and associated conditions, such as cerebral palsy, due to medical negligence during labor and delivery. However, it often takes years to determine whether a potential medical error caused children cognitive or physical disabilities.
Some states toll the statute of limitations until the child reaches adulthood. However, parents generally have two options in such cases. First, they may file medical malpractice litigation on their child’s behalf within the applicable statute of limitations, utilizing the traditional discovery rule. They may also wait until their child turns 18 and allow the patient to bring malpractice litigation based on past injuries and future anticipated needs. A birth injury lawyer might help families understand the statute of limitations applicable to childhood medical malpractice claims and help them preserve evidence of malpractice for future litigation.
Tolling (Stopping) the Statute of Limitations Countdown in Medical Malpractice Cases
Many potential medical malpractice cases involve tolling, which delays or pauses the statutory countdown. These cases often arise when patients already discovered the actionable injury or illness, starting the clock, but intervening circumstances prevented them from filing timely malpractice litigation. A medical negligence lawyer may help claimants recalculate the statutory filing deadline by applying one or more of the following tolling principles.
Minority (Under the Age of 18)
As previously stated, malpractice committed against minor patients, including those injured during birth, generally reset after the child turns 18. The countdown initially begins when the minor or their parents discover the actionable injury and, if the legal guardians take no action, lies dormant until the patient turns 18. The patient’s 18th birthday typically restarts the applicable malpractice clock.
Mentally Incapacitating Injuries
Certain forms of medical malpractice, including anesthesia, prescription drug, and birthing errors, cause life-changing traumatic brain injuries. These injuries often include anoxic and hypoxic (lack of oxygen) brain trauma. Umbilical cord compression during pregnancy and birth can cut off the brain’s blood supply, killing the child’s brain cells before they fully develop. Likewise, heart attacks and strokes (often missed diagnoses) also reduce blood flow to the brain. The brain begins dying after only four minutes without oxygen, which often results in a coma, vegetative state, or serious cognitive disability.
Courts do not allow the statute of limitations to run indefinitely in such cases, but the following special rules generally apply.
- Temporary coma – The statute of limitations pauses during the period of temporary incapacitation related to the initial malpractice. Patients may add this time to the filing deadline.
- Temporary cognitive disabilities – Sometimes injured claimants regain their mental faculties with extensive rehabilitation. Patients waking from a coma may need a few months of therapy, which can also toll the statute of limitations. Most states do not restart the countdown until patients regain the cognitive function necessary to retain an attorney, understand their legal rights, and participate in malpractice litigation.
- Permanent mental disabilities or a vegetative state – Once doctors certify that patients reached maximum medical improvement following brain trauma, families must decide whether their loved ones need a legal guardian. Guardianship proceedings often go forward if patients cannot make complex decisions regarding their care or legal rights. Most jurisdictions toll the statute of limitations during guardianship proceedings and give legal guardians one year from the appointment date to file medical malpractice claims. An attorney should always assist patients and their families during this process. The clock generally begins ticking after the guardian’s appointment regardless of the patient’s continuing disability.
- Coma or disabilities unrelated to the malpractice – Not every state gives patients an indefinite amount of time to file malpractice claims if medical errors did not cause the incapacity injury. Some jurisdictions toll the claims but cap the maximum tolling period through a statute of repose, while other states only stop the statute during guardianship proceedings.
Claimants must submit medical evidence showing their cognitive incapacitation to avoid time-barred dismissals. Generally, medical experts must certify the qualifying disability before judges can recalculate limitations deadlines during malpractice litigation.
Fraud and Intentional Misrepresentation
Patients often return to the same doctor when they continue suffering from a misdiagnosed condition or experience post-surgical pain. Most claimants do not immediately assume their treating providers committed actionable malpractice.
Unfortunately, sometimes physicians catch their malpractice during later visits and quickly explain away or conceal their errors. They may lie about why they didn’t order certain tests or blame the patient for failing to provide a thorough family history. Some doctors even cover up their errors by altering records, sometimes subsequently adding diagnostic testing referrals to the patient’s medical records.
Many injured claimants never catch these subtle manipulations until another doctor reviews previous medical records. Most jurisdictions give claimants additional time to investigate and file malpractice litigation once they discover the fraud, even if the limitations period already expired. Some states call this the continuous wrong exception to the statute of limitations. Nearly every state permits this type of tolling; although, some jurisdictions only discuss this principle in case law.
Fraudulent conduct discouraging or inhibiting the claimant from seeking a second opinion stops the statute of limitations from running. Courts only start the clock when patients first learn about or reasonably suspect fraud. Medical malpractice attorneys may work with forensic handwriting and medical experts to analyze patient records and charts for alterations. This process often includes checking electronic editing stamps or testing the ink for alterations (to detect the use of different pens). Experienced healthcare records experts can generally spot potential fraud quickly.
Certain legal matters, such as bankruptcy, stop the statute of limitations from running. Hospitals and medical equipment companies subject to multiple malpractice claims have filed for bankruptcy protection in federal court. This petition stops the statute of limitations from running until the bankruptcy court discontinues proceedings. A few states also toll the statute of limitations during periods of active military deployment, and federal law requires this in certain malpractice cases. The defendant’s death might also extend the limitations period to give families time to file estate proceedings and appoint executors to handle the claims.
If a medical error causes or contributes to a claimant’s death, the patient’s passing triggers the statute of limitations for wrongful death claims. Many states permit claimants to file wrongful death litigation against a negligent doctor even after the malpractice deadline expired. Sometimes deaths result in postmortem examinations that reveal potential malpractice years after the filing deadline expired. A loved one’s death often revives the estate’s legal claims against a negligent healthcare provider or facility.
An attorney might argue that multiple circumstances extended the statute of limitations applicable to medical malpractice claims. The limitations clock may stop and start several times during the applicable statutory timeline provided the state does not have a statute of repose. Unlike statutes of limitations, statutes of repose set an ultimate deadline for filing malpractice litigation regardless of tolling. A handful of states have both statutes of limitations and repose in malpractice cases, and you should speak with a local attorney about your jurisdiction’s laws.
Understanding the Continuous Care Exception to the Statute of Repose for Malpractice Claims
The continuous care exception to the statute of limitations (or repose) often saves plaintiffs’ malpractice claims. This legal principle addresses situations where the plaintiff continued treatment with the negligent physician for the underlying illness or injury, ultimately delaying their discovery of the actual malpractice. Unlike continuous wrongs, this exception does not involve fraud or other unlawful conduct. It simply assumes the doctor continued to make the same mistake (such as failing to order an MRI or diagnose an autoimmune disorder) every time the patient returned for treatment.
It also places a continuous duty upon the doctor to correct the original malpractice. States recognizing this exception refuse to penalize patients for trusting licensed doctors if they continuously complained about the underlying disorder to the negligent physician. The statute of limitations only begins running when the patient stops treatment with the liable doctor for the negligently caused disorder. Some states include this exception in their statutes, but others only discuss this principle in case law. Patients may not discover this important exception unless they speak with a qualified medical malpractice lawyer.
Examples of Filing Deadline Calculations in Medical Malpractice Cases
The following examples may help claimants calculate when they must file medical negligence litigation in the United States. They each assume the common two-year statute of limitations applicable to healthcare malpractice claims.
Example 1 – Simultaneous Injury and Medical Error (No Tolling)
The patient went into surgery on January 1, 2010, during which the surgeon negligently operated on the wrong leg. The patient saw the surgical scar upon waking and immediately knew the surgeon committed actionable medical malpractice. The patient must file litigation by January 1, 2012 (two years from discovering the injury). Some states do not count the injury date and extend the statute of limitations to January 2, 2012.
Example 2 – Tolling the Statute of Limitations
Same as above, but on January 1, 2010, the anesthesiologist negligently administered too much medication during surgery, causing brain damage. The patient spent two months in a coma and another five months in the hospital before recovering. The statute likely begins running on August 1, 2010, when the patient leaves the hospital, extending the litigation filing deadline to August 1, 2012.
Example 3 – Applying the Continuous Care Exception (Based on a Real Case)
The patient underwent gastric bypass surgery on January 1, 2003. For the next six years, she continued following up with the same surgeon and complaining of abdominal pain. In 2009, the patient went to another doctor for an unrelated condition and discovered her gastric surgeon negligently left a foreign object in her abdomen during the 2003 surgery.
The court permitted the plaintiff to file medical malpractice litigation against the original surgeon in 2009 because the statute of limitations did not start running until she stopped treatment with the gastric surgeon. The limitations period only began running when she ceased treatment with the negligent doctor and discovered the error in 2009.
Recovering Compensation for Damage Caused by Negligent Healthcare Professionals
Patients and their families often struggle with undiagnosed conditions for years before discovering potential malpractice. No amount of money can fully compensate claimants for their pain and suffering, but the law may provide patients with holistic financial relief. Only licensed medical professionals bear liability for medical malpractice.
However, this generally includes hospitals, nursing homes, birthing facilities, and private medical entities. Doctors also subject themselves to vicarious (imputed) malpractice liability for their assistants and administrative staff’s negligent medical conduct.
Damages recoverable in viable medical malpractice cases generally include:
- Medical bills
- Lost wages and career opportunities
- Lost fringe benefits (health insurance, pension contributions, and vacation time)
- Physical pain
- Mental suffering and emotional anguish
- Lost enjoyment of life and past activities
- Frustrations associated with the inability to perform daily activities
- Household help and nursing care
- Medical equipment and transportation
Patients may request reimbursement for past losses (such as treatment for the negligently inflicted injury) and future anticipated losses stemming from the medical neglect. An attorney may help claimants work with medical, economic, and occupational experts to calculate the value of their past damages and future needs.
Most claimants recover malpractice settlements from medical malpractice insurers. These high-value insurance policies generally offer lump-sum settlements to injured patients after receiving evidence of viable malpractice claims. Recovering insurance compensation generally requires independent expert medical testimony showing the defendant’s alleged medical failures, but insurers seldom offer any compensation if the statute of limitations seemingly expired.
In such cases, claimants must usually file medical malpractice litigation to obtain a judicial ruling on the limitations period. Insurers may offer substantial settlements if an attorney helps patients prove their claims are not time-barred.
Calculating Case Deadlines and Discussing Recovery Options With a Medical Malpractice Lawyer
Only a qualified injury lawyer should help injured patients calculate the filing deadlines for healthcare negligence. Every state applies different laws, and many malpractice statutes contain confusing and seemingly contradictory terms. Even if it seems your time limit expired, remember that the statute of limitations seldom begins running when the malpractice occurred. Rather, patients generally have time to file litigation after discovering the error. Attorneys may also argue that certain factors, including age, disability, deployment, or fraud, paused the statute of limitations.
It often costs nothing to schedule a free case analysis with a local medical malpractice attorney. Lawyers typically begin the case review by calculating the applicable statutory deadlines and determining whether the claimant may file medical malpractice litigation.
Legal professionals may send viable healthcare negligence complaints to the court within applicable deadlines while simultaneously working with insurers to settle your claims. Medical malpractice claims involve some of the most complicated deadline calculations. As such, do not assume the statute of limitations expired before speaking with local counsel about your case. Contact Brauns Law, PC today.