How Long Do You Have To Sue for Medical Malpractice?

If you or a loved one has been a victim of medical malpractice, filing a lawsuit against the healthcare professional who caused your injury can help you recover compensation. Some of the most common forms of medical malpractice include:

• Surgical errors
• Medication errors
• Misdiagnosis
• Birth injuries
• Anesthesia mistakes

To recover for medical malpractice, you will need to show that the medical care you received fell below the expected standard of care. Treatment falls below the standard of care if a reasonably skilled medical professional under the same circumstances would have provided different treatment.

You must also show that this substandard care caused your injuries. An experienced medical malpractice attorney can review your situation and determine whether you have a medical malpractice case.

Statute of Limitations and Filing Deadlines

State laws place a time limit on your ability to sue for medical malpractice. These time limits are called statutes of limitation. Statutes of limitation bar injured patients from suing medical providers after several years from the date of the accident. The statute of limitations for medical malpractice varies by state, but they are usually between two and four years from the date of injury.

If you try to sue your healthcare provider after the statute of limitations has passed, the court can dismiss your case. It is essential to understand your state laws and when the clock starts ticking down.

State-by-State Comparison of Medical Malpractice Time Limits

The following is a general overview of the statute of limitations for medical malpractice in different states. States generally start the clock running from the date of the medical procedure or when the victim should have discovered the injury. However, there are exceptions that may extend or limit the timeframe. That’s why it’s imperative to talk to a local medical malpractice attorney to find out how long you have to sue for compensation.

Alabama	2 years	Ala. Code § 6-2-38
Alaska	2 years	Alaska Stat. § 09.10.070
Arizona	2 years	A.R.S. § 12-542
Arkansas	2 years	A.C.A. § 16-114-103
California	1 or 3 years*	Cal. Civ. Proc. Code § 340.5
Colorado	2 years	C.R.S. § 13-80-102.5
Connecticut	2 years	C.G.S.A. § 52-584
Delaware	2 years	10 Del. C. § 8119
Florida	2 years	F.S.A. § 95.11(5)(c)
Georgia	2 years	O.C.G.A. § 9-3-33
Hawaii	2 years	Haw. Stat. § 657-7.3
Idaho	2 years	Idaho Code § 5-219
Illinois	2 years	735 I.L.C.S. § 5/13- 212
Indiana	2 years	I.C. § 34-11-2-4
Iowa	2 years	I.C.A. § 614.1
Kansas	2 years	K.S.A. § 60-513
Kentucky	1 year	413.140(1)(a)
Louisiana	1 year	L.S.A.-C.C. § 9:5628
Maine	3 years	24 M.R.S.A. § 2902
Maryland	3 years	Md. Cts. & Jud. Proc. Code § 5-101
Massachusetts	3 years	Mass. Ann. Laws Ch. 260 § 2A
Michigan	3 years	M.C.L. § 600.5805
Minnesota	4 years	M.S.A. § 541.076
Mississippi	2 years	M.C.A. § 15-1-36
Missouri	2 years	Mo. Rev. Stat. § 516.105
Montana	2 years	Mont. Stat. § 27-2- 205
Nebraska	2 years	Neb. Stat. § 44-2828
Nevada	3 years	N.R.S. § 41A.097
New Hampshire	3 years	N.H. Stat. Ann. § 508:4(I)
New Jersey	2 years	N.J.S.A. § 2A:14-2
New Mexico	3 years	N.M.S.A. § 41-5-13
New York	2 years and 6 months	N.Y. C.P.L.R. § 214-a
North Carolina	3 years	N.C.G.S.A. § 1-15
North Dakota	2 years	N.D.C.C. § 28-01-18
Ohio	1 year	O.R.C.A. § 2305.113(A)
Oklahoma	2 years	Okla. Stat. Tit. 12, § 95
Oregon	2 years	O.R.S. § 12.110
Pennsylvania	2 years	42 P.S. § 5524
Rhode Island	3 years	R.I.G.L. § 9-1-14.1
South Carolina	3 years	S.C. Code § 15-3- 545
South Dakota	2 years	S.D.C.L. § 15-2-14.1
Tennessee	1 year	Tenn. Code Ann. § 29-26-116
Texas	2 years	Tex. Civ. Prac. & Rem. Code Ann. § 16.003
Utah	2 years	U.C.A. § 78(B)-3-404
Vermont	3 years	Vt. Stat. Ann. Tit. 12, § 521
Virginia	2 years	Va. St. § 8.01-243(A)
Washington	1 or 3 years**	R.C.W.A. § 4.16.350
Washington, D.C.	3 years	D.C. Code § 12-301
West Virginia	1 or 3 years**	W. Va. Code § 55-2-12
Wisconsin	3 years	Wis. Stat. § 893.55
Wyoming	2 years	Wyo. Stat. § 1-3-107

* 3 years from the date of the injury or one year from discovery, whichever is earlier

** 3 years from the date of the injury or one year from discovery, whichever is later

Exceptions to the Statute of Limitations

There are some exceptions to the statute of limitations that might extend the amount of time you have to start a lawsuit against a medical provider. Some exceptions include:

• Discovery rule and left-behind objects
• Continuing treatment
• Malpractice involving child patients
• Statutes of repose

The statute of limitations and tolling statutes vary from state to state. Talk to a medical malpractice lawyer as soon as possible to make sure you know the timeframe to take legal action.

Discovery Rule Exceptions

There may be an exception to your state’s medical malpractice statute of limitations, known as the discovery rule. Under the discovery rule, the time limit begins to run from the date of discovery instead of the date of the injury. You need to show that you did not and could not reasonably discover the injury that resulted from medical malpractice until later. A reasonable person would not have discovered it under the same circumstances.

One of the most common examples of the discovery rule exception is when a doctor leaves a foreign object inside the patient’s body during an operation. The patient might not know about a left-behind object for months or years after the surgery.

For example, a patient has an appendectomy to remove their appendix. They recover and go back to their everyday life. The state statute of limitations period is two years. Four years later, the patient started having severe abdominal pain. An X-ray shows that the surgeon had left gauze in the surgical wound.

In this case, the patient could not have discovered the malpractice until their X-ray four years later. In a state with the discovery rule, the clock does not start counting down until the patient discovers the foreign object injury. The patient would likely have more time to file a medical malpractice claim based on late discovery of the injury.

Continuing Treatment Exceptions

In some states, the statute of limitations doesn’t start running while you are still receiving treatment from the medical provider who caused the injury. In these states, the statute of limitations only starts running down after you finish treatment with the provider who injured you.

The rationale for this exception has to do with the fact that patients usually have confidence in their doctors’ expertise during treatment. While they are still receiving treatment, patients might be less likely to question the doctor’s competence or judgment.

To illustrate this exception, suppose a patient sought treatment five years ago for high blood pressure. The doctor diagnosed the condition and recommended a medication regimen. However, the patient was unaware that their doctor gave them the incorrect dosage of the medication. The patient went on to receive ongoing treatment from the doctor for five years before suffering a stroke. The patient learns that they might not have had the stroke if they had received the proper dosage.

In this example, the statute of limitations does not start running down until after the patient ceases treatment with their doctor. Even if there was a two-year statute of limitations, the continuing treatment doctrine allows the patient to sue after the initial negligent medical care.

What Is a Statute of Repose?

A statute of repose is a state law that places an absolute limit on your ability to file a medical malpractice lawsuit. While exceptions give you more time to sue, statutes of repose put hard time limits on any exceptions.

Even if you have not discovered your injury yet, you will be barred from bringing a lawsuit after the statute of repose period. For example, a patient cannot file a lawsuit for medical malpractice more than seven years after the malpractice occurred under Massachusetts law.

However, even if your state has a statute of repose, there may still be exceptions to this rule. In Massachusetts, for example, the statute of repose does not apply in cases where a doctor leaves a foreign object inside the body.

Exceptions for Minors

Many states make exceptions to the statute of limitations for people who were under 18 years old when the malpractice occurred.

For example, a child who suffered a birth injury has severe medical conditions as a result. But an infant can’t file a lawsuit against their doctor. So, many states give minors until a certain age before starting the clock running. That age varies according to state law. In most states, the statute of limitations for medical malpractice starts when a minor turns 18. In other states, it can be as young as age six when the clock starts running.

Wrongful Death Claims

In a fatal medical malpractice lawsuit, the injury victim is not alive to fight for their legal rights. However, surviving family members can recover compensation on behalf of their loved ones after a fatal medical negligence case with a wrongful death claim.

The statute of limitations for a wrongful death case may differ from the medical malpractice time limit. If a loved one died in a medical malpractice case, talk to your attorney about the time limit to file a wrongful death claim.

How an Attorney Can Help With a Medical Malpractice Case

Statutes of limitation seem like simple time limits. However, when you consider all the exceptions, figuring out your timeline to file a medical malpractice claim becomes much more complicated. An experienced medical malpractice attorney in your area can help you decide whether you can still file a claim.

Having a skilled attorney on your side will also be essential for gathering evidence and building a case. Your attorney and their legal staff will:

• Gather your medical bills and medical records
• Consult with medical experts to learn how your treatment fell below the expected standard of care.
• Negotiate a settlement, if possible
• File paperwork before the statute of limitations expires
• Take your case to trial if necessary

Your medical professional will probably have support from their insurance company’s attorneys. An experienced lawyer on your side who knows how to present your case to the opposing side expertly.

Effective legal representation can help you achieve a fair settlement. Most medical malpractice cases end in a settlement. But your lawyer might need to take your case to trial if the insurance company won’t pay what you deserve.

How Will I Pay For a Medical Malpractice Lawyer?

Most medical malpractice lawyers offer a free consultation to help you get started. You can use this initial case review to ask for an estimate of your case’s value and ask about the attorney’s experience with cases like yours.

If you are concerned about paying a lawyer, you should also ask about the attorney’s fee structure. Personal injury lawyers usually take medical malpractice cases on a contingency fee basis. This means you will only pay the lawyer if you receive a settlement or verdict in your case. The attorney will then take a percentage of this award as their payment.

Finding the Right Attorney For Your Needs

Visit the Super Lawyers directory to find a local medical malpractice attorney for legal advice.