Medical Malpractice Statute of Limitations: What You Need to Know

In this chapter of the Medical Malpractice Insurance Guide, we go into greater detail regarding an important concept: the statute of limitations for medical malpractice. We define what a “statute of limitations” is (specifically within the context of malpractice), explain some common exceptions, and outline the basic statutes of limitations for medical malpractice in each state.

What Is the Statute of Limitations on Medical Malpractice Lawsuits?

The statute of limitations for medical malpractice refers to the amount of time within which an injured party must bring about a lawsuit. After the time has passed, a suit for damages cannot be filed.

For example, suppose one of your patients alleges they experienced an injury due to a mistake you made. In that case, they must file a medical malpractice claim within a certain time period in order to potentially recover damages.

Every state has a time limit for filing medical malpractice suits, but how long it is and when it starts differs from state to state. Think of it as a ticking clock, counting down the time to act. Some states start the clock from when the alleged injury, damage, or malpractice took place, while others begin to measure it as soon as the alleged mistake is discovered or reported.

When the clock starts ticking is crucial. Sometimes patients discover injuries right when they happen, but other times the damage from a claimed medical error isn’t obvious until much later. That’s why some states have what’s called a discovery rule.

What Is the Discovery Rule?

The discovery rule recognizes that the consequences of medical malpractice don’t always show up right away. In medical malpractice cases, it may take time for injuries to surface or for the patient to become aware of them.

With the discovery rule, the statute of limitations doesn’t start until the date the patient discovered (or should reasonably have discovered) the injury. Patients must make a reasonable inquiry or exercise some degree of diligence in discovering their injuries, such as seeking medical treatment and investigating the cause of pain or unexpected health conditions. Applying the discovery rule means the time span you can be sued for malpractice lengthens based on your state’s rules on the statute of limitations.

From an insurance standpoint, the discovery rule matters because it affects when claims can be brought against you as the medical provider and when you need to rely on your malpractice insurance coverage. You could end up facing a malpractice lawsuit months or even years after treating a patient if your state’s statute of limitations (see table below) starts ticking after the discovery of the injury rather than at the time of the actual incident.

For example, in California, patients must file a claim within one year of discovering the issue (or when they should reasonably have discovered it). But if “more than three years have passed since the alleged negligent act occurred,” patients lose the right to file a medical malpractice lawsuit.

A similar statute applies in Florida. There, patients have a two-year statute of limitations for medical malpractice from the date the issue is discovered (or should reasonably have been discovered). However, Florida imposes a four-year overall limit, regardless of when the patient became aware of the problem.

What Are Some Exceptions to the Statute of Limitations for Medical Malpractice?

Some state laws make exceptions for certain individuals to give them more time to file a medical malpractice suit. It’s important to note that not all states have exceptions. Check your state’s applicable laws (see table below) or consult a lawyer to understand how your state’s statute of limitations operates.

Patient Age

Many states allow minors more time than adults to file a lawsuit. In some states, the clock doesn’t start ticking on the statute of limitations until after a child turns 18, while other states make exceptions only for very young children.

For example, if a child is allegedly harmed by medical malpractice in Arizona, the statute of limitations is paused while they’re still a minor. Then, when the child turns 18, the statute of limitations kicks in, putting a time limit on when they can pursue a medical malpractice claim.

Type of Alleged Malpractice

Many states have exceptions to the statute of limitations if the alleged malpractice involves a foreign object. For example, suppose a medical professional in California leaves a sponge in a patient’s body after surgery.

According to California’s statute of limitations, the clock starts only after the object is discovered, even if it is found after the time limit has passed.

Defendant Behavior

The statute of limitations is sometimes delayed or waived altogether if the medical provider moves to a different state after the alleged incident, tries to conceal the malpractice, or acts intentionally or in a way that was grossly negligent within a specific time period after the incident.

Tennessee adopted this exception. As an example, let’s say a patient’s physical therapy treatment leads to severe complications due to the therapist’s alleged negligence, but the therapist tries to cover up their alleged mistake. There is no overarching statute of limitations deadline in this case, so the patient has more time to file a lawsuit.

Notification Timelines

Some states allow the statute of limitations to be extended briefly if the patient gives notice of their intention to sue. In Ohio, for example, patients approaching the one-year mark since the discovery of an injury can send their provider a “180-day letter” letting them know they are considering suing. As long as the letter is received within one year of discovering the incident or injury, the plaintiff will get an extra 180 days to file suit.

Medical Malpractice Statutes of Limitations by State

In this table, you’ll see three time frames for each state’s statute of limitations for medical malpractice:

• The injury date: How long a patient has to file a claim from the date of their injury.
• The time allowed under the discovery rule: Limits how much time a patient has to file a claim from when they discover the injury (or should reasonably have discovered it).
• A maximum time limit: A cap on how long a patient has to file a claim. No matter when the injury occurred or was discovered, a claim must be initiated within this time frame.

Keep in mind that the information in the table below was accurate when this guide was published, but laws can change. Also note:

1. These time frames are for individuals over the age of 18 where the injury occurred while they were over the age of 18.
2. Many states have different statutes of limitations for minors; and many states have different statutes of limitations when it comes to leaving foreign objects in the body.

It’s essential to verify your state’s specific medical malpractice laws so you have the most accurate and up-to-date information for your state.

 

 

For actions in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury, the period of limitations is extended forward 2 years from the time the injury was discovered or should have been discovered but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

Examples of State Limitations: How to Read the Chart

Let’s look at a few examples to understand the table better.

Suppose a patient in Alabama alleged they were injured because the practitioner didn’t meet the standard of care. In this case, the patient has two years from their injury to file a lawsuit. But suppose they didn’t notice their injury until three years later. Then, they’d have an additional six months to file a claim. However, there’s a maximum time of four years — meaning they couldn’t claim medical malpractice or medical negligence more than four years after the initial injury occurred.

In Alaska, the patient has two years from the date of the incident to file a medical malpractice claim and two years from when they discovered (or should reasonably have discovered) the injury. However, state law sets a 10-year limit from the date of the initial incident for medical malpractice cases.

How Can You Protect Yourself From Medical Malpractice Lawsuits?

It’s essential to recognize that medical malpractice claims can surface long after the incident. That’s why maintaining continuous and comprehensive insurance coverage is so important. When you have the right medical malpractice policy, it can cover you within the applicable statute of limitations period.

Even if you’re protected through your employer’s policy, individual coverage can protect you and your interests that might not be covered by your employer’s insurance. Also, ask about tail coverage that protects against claims that may arise after your policy expires. This type of insurance can be useful if you retire or switch practice locations.

Partnering with a reputable insurance company like Berxi, known for its expertise in insurance, can get you tailored medical malpractice insurance that aligns with your unique circumstances. That way, you can prioritize what truly matters — delivering exceptional patient care.

Image courtesy of iStock.com/masterzphotois

 

Last updated on Mar 26, 2024.
Originally published on Apr 27, 2020.

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