It’s not unheard of for some to suffer consequences caused by preventable injuries or illness because of the negligence of the medical practitioner in charge. If this happens, you can be eligible for compensation. But it’s important to keep in mind that how long to sue for medical malpractice depends on the state you’re in.
Usually, it can range from two to four years. When the clock starts ticking down can also depend on what rule the state follows.
When does the countdown begin?
How long do you have to sue for medical malpractice? Well, this can vary from state to state. Generally, the clock starts counting down on the date when the medical practitioner has committed the mistake. But there are a few special rules that most states apply to specific special situations.
‘Continuous Treatment’ Rule
With the ‘Continuous Treatment’ rule, the statute of limitations clock doesn’t begin ticking down until after the medical practitioner has stopped treating the patient for the specific condition at issue.
An example situation would be if a doctor in a state that adopts this rule causes injury during the treatment and continues to treat the patient for that injury for a few more years. In this case, the statute of limitations countdown doesn’t start until after the doctor has finished and completed the treatment.
Discovery Rule
The Discovery rule was added by most states because patients usually do not become aware of the medical practitioner’s negligence until years later when the statute of limitations time window has already passed.
The statute of limitations can then be extended until the victim discovers that they have been harmed or the time when they should have reasonably discovered the negligence done to them.
For example, if a state adopts a 2-year statute of limitations for medical malpractice cases and the patient only discovers the harm 3 years after their surgery, then they can still sue for medical malpractice. It also depends on the time window that they set for the discovery rule. This means that if the state adopts a 1-year discovery rule, then the victim only has a year after discovery to file for a case.
But, if there is proven evidence that the victim did not promptly address any pain or unexpected health issues caused by the negligence, then they will not be protected by the discovery rule.
Infancy Toll
The statute of limitations is also extended in some states for patients who were infants and/or minors when the negligence happened. It’s called a ‘toll’ because it pauses or delays the time window provided by the state. Usually, the countdown starts after the victim has reached 18 years old, but it can also depend on the state.
One example would be if a patient was harmed while in utero. The time given to them to file a lawsuit would either be when they turn 18 years old or when the time limit set by the state has passed.
Statute of Repose
A statute of repose is one that sets an absolute deadline to file a case for medical malpractice, regardless of whether the victim has discovered the injury yet or not. It can vary from state to state but one example of a statute of repose is a provision that states that no lawsuit can be filed 10 years after the alleged medical negligence happened.
Hiring a medical malpractice lawyer can help you recover damages, as well as compensation owed to you. How much do medical malpractice lawyers make? They’re usually paid a portion of the compensation they recover on behalf of the victim. Not to mention, they’re among the highest-paid lawyers out there which means they can be trusted to do the job well.
You can, in fact, file a medical malpractice lawsuit without an attorney. But hiring a lawyer is always the better idea.
Four Requirements When Filing for a Medical Malpractice Lawsuit
So, how do you know if you have a malpractice case? There are specific factors and requirements that you should make sure to have if you’re considering filing for a medical malpractice case.
A mistake, such as a surgical error, in itself, is not enough to be grounds for a lawsuit. But you can be given compensation provided the following are present:
- An existing doctor-patient relationship establishing a standard of care that’s accepted in standard medical practice
- The doctor violating this standard of care in some manner
- The negligence by your doctor causes unexpected illness and/or injuries or worsens an already existing medical condition
- The injury or illness causes you to incur damages
Regardless of the statute of limitations and its exceptions, it’s still important to act quickly once you suspect medical malpractice has been done to you or your loved one. Waiting too long might cause you to lose valuable pieces of evidence and testimonies.
Frequently Asked Questions (FAQ)
Can you sue for medical malpractice years after treatment?
Yes, you can still file a lawsuit for medical malpractice years after treatment. But this can also be dependent on whether the state you’re in adopts the continuous treatment rule, as well as the extended time window they provide for that rule.
When is it too late to sue for medical malpractice?
The deadline can depend on the type of medical malpractice case and the state where the lawsuit is being filed. Generally, it can be too late after two to three years have passed. However, if your specific case fits the requirements for the exceptions then the deadline can be extended. If you are still unable to file a lawsuit within the extended deadline, then the defendant is within their rights to file a motion to dismiss any lawsuit you file after the fact.
Can I claim for medical negligence after 5 years?
You can claim medical negligence after 5 years provided that you have sufficient evidence of the fact and if it is still within the statute of limitations.
