How Much Time Do I Have To File A Medical Malpractice Lawsuit?

Statute of limitations refers to the amount of time one has to start a lawsuit against all responsible parties by filing a summons and complaint in court. If a lawsuit is not timely commenced within the applicable statute of limitations, then the ability to sue is forever lost. Generally, a summons and complaint relating to medical malpractice is governed by a 2½-year statute of limitations, which means that a victim of malpractice must start the lawsuit within 2½ years subsequent to the date when the negligent act or omission by the health care provider occurred. This is a different statute of limitations than the three-year statute of limitations, which normally governs ordinary negligence cases that do not involve medical malpractice such as motor vehicle accidents, premises liability and various other types of negligence.

Distinction Between Malpractice And Ordinary Negligence

It is important to realize that not every act of misconduct with respect to a patient constitutes medical malpractice, and sometimes the distinction between ordinary negligence and malpractice can be blurred, which may result in a different statute of limitations. For instance, the failure to take proper medical histories constitutes medical malpractice, but the failure to provide competent personnel or to promulgate appropriate emergency room rules is negligence and not malpractice. In another example, negligent hiring of an employee who subsequently commits an act of malpractice is a violation of a general duty to a patient, rather than an integral part of medical treatment, and is subject to a three-year statute of limitations as opposed to the 2½-year statute. Sometimes there may be the need for specialized professional knowledge and expert testimony in order to determine whether a situation giving rise to injuries and damages is the result of medical malpractice rather than ordinary negligence.

Infancy (Someone Under The Age Of 18) Affecting The Statute Of Limitations

Of course, there may be exceptions to the applicable statute of limitations that tolls the amount of time one has in order to start a lawsuit. For instance, if there is an infant, under the age of 18, who has been the victim of malpractice, the period of time an infant has in order to commence a lawsuit is tolled until the infant reaches 18 or sooner dies but in no event for more than 10 years from the date of the act or omission giving rise to the medical malpractice. Therefore, the 10-year limitation on the infancy toll begins to run at the time of the original negligent act or omission and may not be tacked to the end of a period of continuous treatment.

Discovery Of A Foreign Object Left Inside A Patient Affecting The Statute Of Limitations

In terms of discovery of a foreign object that was left inside a patient unbeknownst to the patient, if the operation was performed on or after July 1, 1975, the action may be brought within 2½ years after the operation, or within one year after actual discovery of the foreign object, or the date of discovery of facts that would reasonably lead to such discovery, whichever is earlier.

Continuing Or Ongoing Treatment Affecting The Statute Of Limitations

Additionally, when there is a malpractice claim arising out of malpractice committed during a course of continuous treatment that is related to the original condition or complaint, the statute of limitations will be tolled until the end of the course of continuous treatment of the patient by the defendant. This is the result of the premise that it is in the patient’s best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because the doctor is not only in a position to identify and correct his or her malpractice but is best placed to do so. However, issues involving the tolling of a statute of limitations based on continuous treatment are very complex and require a thorough investigation and analysis by a competent and qualified attorney.

At the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., all potential medical malpractice cases are fully evaluated and we consult only the most respected medical experts in their respective fields in order to gain the fullest understanding of whether a doctor, surgeon, hospital, etc. has truly acted in a negligent manner before a suit is filed. We take pride in ensuring that doctors who put their patients’ well-being and even their lives at risk are held accountable and that our clients receive full compensation for their harms and losses, and receive the justice and dignity that they deserve.

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