FREE CASE EVALUATION:

How Long Do You Have to Sue for Medical Malpractice?

Understanding the Medical Malpractice Statute of Limitations

Medical malpractice is a common occurrence in the United States. Studies rank it as one of the leading causes of death in the nation, claiming hundreds of thousands of people every year. In non-fatal cases, the errors may result in severe damage, temporary or permanent disability.

A survey on Americans’ experience with medical errors found that four in ten adults have experienced these errors, either personally or someone close to them. According to the report, most of the cases are due to diagnostic errors, lack of attention to detail, poorly trained medical professionals, distraction, and fatigue, to name a few.

How Long Do You Have to Sue for Medical MalpracticeIf medical malpractice has injured you or a loved one, you have a right to seek compensation for the damages. These could be medical costs, loss of wages, pain and suffering, among other relevant losses. In addition, if you lost a loved one due to medical malpractice, you could also file a lawsuit to seek compensation for their wrongful death.

However, if you plan to sue for medical malpractice, you must do so within a specified timeframe. Bringing a lawsuit past the deadline might lead to case dismissal by the court unless you qualify for an exception.

Every state has a statute of limitations for medical malpractice lawsuits (as highlighted in a later section). So it’s essential to consult an experienced medical malpractice attorney (preferably a local one) immediately upon learning of the malpractice. Once the lawyer evaluates your case, they can advise whether you have a solid claim to merit trial.

How long do I have to sue for Medical Malpractice?

“suing

Yes, you can sue for medical malpractice after it occurs, as long as it is within the statute of limitations for your state. These can be anywhere from 1-10 years depending on the deadline for your state. The most common types of medical malpractice cases are due to diagnostic or surgical errors, lack of attention to detail, improperly trained medical professionals, distraction, and fatigue, among other scenarios. If you or a loved one was impacted by medical malpractice where actions fell below the standards of care, you have the right to seek compensation for damages by pursuing a legal case. Consult an experienced medical malpractice lawyer in your area for an evaluation of your claim.

Need Legal Help? Let’s talk.

 

What Is Medical Malpractice

Essentially, medical malpractice is a breach of duty of care by a medical practitioner resulting in the injury or death of their patient. Medical professionals must follow standards while caring for patients (diagnosis, surgery, or treatment). Failure to meet these standards could lead to liability for damages caused by their acts of omission or commission.

For a successful medical malpractice case, you must demonstrate that the physician acted negligently and their actions caused your injuries.

Proving negligence requires proving these four legal elements.

  1. The physician owed you a duty of care (physician-patient relationship existed)
  2. They breached their duty of care (physician’s actions fell below the expected standard of care)
  3. Their breach caused your injuries
  4. The injuries resulted in damages

Common Types of Medical Malpractice

Medical malpractice covers a long list of medical errors.

However, the most common ones include:

  • Diagnostic errors – Misdiagnosis or failure to diagnose an illness or injury
  • Surgical errors – Medical professionals neglecting the standards of care during surgery can amount to a legal liability
  • Pharmaceutical errors – A prescription error either by the doctor/nurse or the pharmacist
  • Birth injury – Preventable birth errors resulting in cerebral palsy, nerve injuries to newborns, head and brain injuries to newborns, pregnancy and childbirth complications, etc.

Medical Malpractice Statute of Limitations

A statute of limitations is the time limit within which you can exercise your right to file a lawsuit in court. As earlier mentioned, the statute of limitations varies in every state. In addition, medical malpractice time limit laws differ slightly from other injury cases.

Most states have multiple part statutes of limitations (deadlines) for medical malpractice.

These include:

  • Standard deadline – The basic time limit within which victims can sue a medical provider for malpractice. It starts counting from the time the error occurred.
  • Discovery rule – This is an exception to the standard deadline that shifts the clock from the malpractice occurrence date. Instead, the deadline starts counting once the victim discovers or should have reasonably discovered the malpractice.
  • Statute of limitations for minor children – Most states have special provisions for minors in medical malpractice cases. In this case, the deadline starts counting once the child reaches a certain defined age.
  • Statute of repose – Some states have a maximum (absolute) deadline within which a victim may exercise their right to sue, regardless of when they discovered the malpractice. However, there may still be applicable exceptions to the maximum time limit.

Consult an experienced medical malpractice lawyer from your state is essential to help you understand your state’s statutes. Since these deadlines vary significantly between states, a lawyer can help you avoid missing your cutoff to file.

Generally, here is a rundown of the various deadlines across the 50 states plus the District of Columbia.

Alabama

  • Standard deadline: two years
  • Discovery rule: six months
  • Statute of repose/maximum: four years

Alaska

  • Standard deadline: two years
  • Discovery rule: two years

Arizona

  • Standard deadline: two years
  • Discovery rule: two years

Arkansas

  • Standard deadline: two years
  • Discovery rule: one year
  • Maximum: two years

California

Colorado

  • Standard deadline: two years
  • Maximum: three years

Connecticut

  • Standard deadline: two years
  • Discovery rule: two years
  • Maximum: three years

Delaware

  • Standard deadline: two years
  • Maximum: three years

District of Columbia

  • Standard deadline: three years

Florida

Georgia

  • Standard deadline: two years
  • Maximum: five years

Hawaii

  • Discovery rule: two years
  • Maximum: six years

Idaho

  • Standard deadline: two years
  • Discovery rule: (Discovery of a foreign object) two years

Illinois

  • Discovery rule: two years
  • Maximum: four years

Indiana

  • Standard deadline: two years

Iowa

  • Discovery rule: two years
  • Maximum: six years

Kansas

  • Standard deadline: two years
  • Discovery rule: two years
  • Maximum: four years

Kentucky

  • Standard deadline: one year
  • Discovery rule: one year
  • Maximum: five years

Louisiana

  • Standard deadline: one year
  • Discovery rule: one year
  • Maximum: three years

Maine

  • Standard deadline: three years
  • Discovery rule: (Foreign object) from the time of reasonable discovery

Maryland

  • Standard deadline: five years
  • Discovery rule: three years

Massachusetts

  • Standard deadline: three years
  • Maximum: seven years

Michigan

  • Standard deadline: two years
  • Discovery rule: six months
  • Maximum: six years

Minnesota

  • Standard deadline: four years

Mississippi

  • Standard deadline: two years
  • Discovery rule: two years
  • Maximum: seven years

Missouri

  • Standard deadline: two years
  • Discovery rule: (Foreign object) two years from discovery

Montana

  • Standard deadline: two years
  • Discovery rule: two years
  • Maximum: five years

Nebraska

  • Standard deadline: two years
  • Discovery rule: one year
  • Maximum: 10 years

Nevada

  • Standard deadline: three years
  • Discovery rule: one year

New Hampshire

  • Standard deadline: three years
  • Discovery rule: three years

New Jersey

  • Standard deadline: two years

New Mexico

  • Standard deadline: three years

New York

  • Standard deadline: two years six months
  • Discovery rule: (Foreign object) one year

North Carolina

  • Standard deadline: three years
  • Discovery rule: one year
  • Maximum: four years

North Dakota

  • Standard deadline: two years
  • Discovery rule: two years
  • Maximum: six years

Ohio

  • Standard deadline: one year
  • Discovery rule: four years

Oklahoma

  • Discovery rule: two years

Oregon

  • Standard deadline: two years
  • Discovery rule: two years
  • Maximum: five years

Pennsylvania

  • Standard deadline: two years
  • Maximum: seven years

Rhode Island

  • Standard deadline: three years
  • Discovery rule: three years

South Carolina

  • Standard deadline: three years
  • Discovery rule: three years
  • Maximum: six years

South Dakota

  • Standard deadline: two years

Tennessee

  • Standard deadline: one year
  • Discovery rule: one year
  • Maximum: three years

Texas

  • Standard deadline: two years
  • Maximum: 10 years

Utah

  • Discovery rule: two years
  • Maximum: four years

Vermont

  • Standard deadline: three years
  • Discovery rule: two years
  • Maximum: seven years

Virginia

  • Standard deadline: two years
  • Maximum: 10 years

Washington

  • Standard deadline: three years
  • Discovery rule: one year
  • Maximum: eight years

West Virginia

  • Standard deadline: two years
  • Discovery rule: two years
  • Maximum: 10 years

Wisconsin

  • Standard deadline: three years
  • Discovery rule: one year
  • Maximum: five years

Wyoming

  • Standard deadline: two years
  • Discovery rule: two years

Important Notes

  1. Suppose you discover the malpractice past the standard deadline, necessitating reliance on the discovery rule. In that case, you must prove that you were not aware of the injury until you addressed it.
  2. In case of medical malpractice involving minors, the maximum time limit or the statute of repose does not take effect until they reach the age of majority or any other age defined by the specific state’s statute.

What Are the Steps for Filing a Medical Malpractice Claim?

Medical malpractice cases take a slightly different approach from other personal injury claims. After discovering a medical error might have caused your injuries, it’s always advisable to talk to an attorney immediately. Most personal injury attorneys offer a free first consultation, so you have nothing to lose by seeking their professional opinion about your case.

A lawyer will evaluate your case, establish the elements of negligence, ascertain the statute of limitations has not lapsed, then advise if a lawsuit is appropriate.

At this point, you have likely already sought out the medical professional who treated you. They have either denied liability or admitted liability, but you have sustained hefty damages that their insurer will need to chip in and compensate you.

Whatever the situation, here are essential steps you need to take.

Gather Your Medical Records

Medical records are central in proving negligence in medical malpractice cases. It would be best if you had them from the start, as they are the primary evidence your lawyer relies on to determine the validity of your claim.

Generally, the attorney uses the records to seek the opinion of medical professionals and understand the case facts better. In addition, any expert witnesses in your case rely on the documents to develop their testimony for medical malpractice.

Explore an out-of-Court Settlement

Before filing a lawsuit, your lawyer may seek out the medical provider and their insurer for an out-of-court settlement. Unless the medical professional or facility blatantly refuses to admit liability, they may settle out of court.

Court cases are expensive, and insurance companies prefer settling a claim before it proceeds to trial. If you win, the insurance company stands to incur more losses.

Generally, they aim to settle for as little as possible, which is why you need an experienced medical malpractice lawyer to negotiate for a fair settlement. When damages are massive, and the insurance company may lose a large sum of money, they’ll likely assign their best negotiators (defense attorney and insurance adjuster). Hence, your attorney must be a skilled negotiator to navigate the settlement process if they play hardball.

If the insurer refuses to settle fairly, then you may file a lawsuit.

Satisfy Pre-Suit Requirements

Before filing the case, you need to comply with specific pre-suit requirements. Before filing, the court requires you to submit a certificate of merit in most states, confirming that a qualified physician has reviewed your case and concluded malpractice has occurred. States that do not require a certificate of merit may still have provisions for the minimum qualifications of the expert witnesses testifying in your case.

Complying with the pre-suit requirements is mandatory, and non-compliance can lead to case dismissal.

Filing the Lawsuit

After your attorney ascertains the claim meets all the pre-suit requirements, they may now file a suit in court. Once the case is in court, it follows the usual legal process, including discovery, mediation, then trial. The defendant can agree to settle at the discovery or mediation stages. However, if they don’t, your lawyer must present the most convincing case possible before the court and wait for the verdict.

In Conclusion

Sometimes unpreventable medical errors happen. But when medical professionals’ actions fall below the standard of care, resulting in avoidable mistakes that injure their patients, they are legally liable to compensate them for their negligence.

If avoidable medical errors hurt you, an experienced Chicago medical malpractice lawyer should help you recover your damages. However, if you discover the malpractice, you must immediately commence an action to avoid the statute of limitations expiring, which a legal team can initiate on your behalf. If you are unsure whether you still have a right to sue for your medical malpractice injuries, consult a lawyer in your area for guidance. Zayed Law Offices’ team of successful medical malpractice lawyers have experience taking on the big cases so that our clients can find the closure and compensation for their suffering. Contact our 

Consultation Request

RECENT POSTS

Medical Malpractice: Defined

People facing even minor medical conditions rely on the experience and trustworthy care offered by qualified medical care providers to help their recovery and maintain

Read More »
chicago injury lawyer

Vigorous Advocacy · Dedication · Results

Schedule a Free Consultation Today