What is the statue of limitations on medical malpractice? 31 Answers as of February 21, 2012

I have multiple claims against a hospital, some medical malpractice and some not. It appears time will run (2 years) before I get an expert affidavit on the medical malpractice. Will I be okay if I file the non medical malpractice counts before time runs, then amend it to add the medical malpractice counts when I get the affidavit, or will the medical malpractice counts be barred? Also, is there a 'bright line' distinction to determine what's medical malpractice and what's not?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Paul Whitfield and Associates P.A.
Paul Whitfield and Associates P.A. | Paul L. Whitfield
Statute on med mal is 3 years. Death 2 years. Malpractice is simply negligence or carelessness of a doctor. Don't let the term buffalo you. You sound ,like you are trying to do this alone. You wont do very well alone. Hire you the best med mal lawyer you can find and let him decide what kind of claims you have.
Answer Applies to: North Carolina
Replied: 6/20/2011
Patrick M Lamar Attorney
Patrick M Lamar Attorney | Patrick M Lamar
There is no requirement for an affidavit prior to filing in Alabama. The case MUST be filed within two years of the act claimed as negligence.
Answer Applies to: Alabama
Replied: 6/20/2011
Bernard Huff, Attorney/Mediator
Bernard Huff, Attorney/Mediator | Bernard Huff
In Indiana, there are administrative procedures to follow before a medical malpractice claim is filed in court. The applicable statute of limitation may be tolled while relief is beingsought before that State's agency.Check with your State's medical board to obtain a copy of its procedures for filing a medical malpractice claim within its prescribed time limits.
Answer Applies to: Indiana
Replied: 6/20/2011
David F. Stoddard
David F. Stoddard | David F. Stoddard
I would not count on being able to amend the pleadings to add medical malpractice after the SOL date. I believe there is a provision that allows you to file the expert affidavit after you file the case if you must do this because of an impending Statute of Limitations deadline. Also, keep in mind that the SOL is three years unless you are suing a governmental entity or charity (most hospitals are one or the other). Regarding your question about a "bright line" distinction between malpractice and other actions, this is difficult to answer without knowing your facts. Malpractice is a form of negligence action. The elements that you have to prove are a deviation of the standard of care to be expected of an ordinary doctor under the circumstances (negligence) and that the negligence cased some injury to the patient (damages caused by the negligence). There are times where this malpractice case might blend into other types of cases. For example, if you paid a doctor a fee to treat a problem and the doctor was negligent, and because of the doctor's negligence, you had to pay another doctor to provide the same treatment to fix the same problem, this could be malpractice or it could be breach of contract. In the example I gave, I am assuming that the first doctor did not make the problem worse, he just did not fix the problem. Thus he cause no injury except charging a fee for nothing, and perhaps some minor suffering for the patient having to wait longer for the problem to be fixed. You could sue for breach of contract to get your money back, or negligence to get your money back. In any type of case, there are often several different legal theories under which you can bring your case. Usually, however, malpractice is a single distinct cause of action.
Answer Applies to: South Carolina
Replied: 6/20/2011
Lacy Fields, Attorney at Law, LLC
Lacy Fields, Attorney at Law, LLC | Lacy Fields
You definitely want to walk into an attorney's office with all your paperwork. This sounds like a complicated situation, and I hesitate to comment on it as these things are fact-specific. That said, generally the rule in Missouri is that you have 2 years from the date of injury/incident to file a medical malpractice. Other non-malpractice claims usually have a 5 year statute of limitation. The 2 years may be paused under some circumstances. Sometimes the 2 years does not begin to run until the injury is "discovered", e.g. it is found that a doctor left a sponge in your body during surgery. Sometimes the 2 years does not begin to run until the last date that you see that doctor, e.g. if the doctor messes something up and the two of you are working to fix it for the next six months, then the statute doesn't run for 2 years plus 6 months. Again, these are general rules but there are 1) rules, 2) exceptions to the rules, 3) exceptions to the exceptions, and so forth. You really need to consult with an attorney.
Answer Applies to: Missouri
Replied: 6/20/2011
    The Woods Law Firm
    The Woods Law Firm | F.W. Woods Jr.
    Generally, 3 years.
    Answer Applies to: South Carolina
    Replied: 6/20/2011
    The Law Office of Josh Lamborn, P.C.
    The Law Office of Josh Lamborn, P.C. | Josh Lamborn
    I do not practice medical malpractice, so this is not a question I feel comfortable answering for you. Medical malpractice cases are extremely complicated and expensive. Since you are asking his question, it is clear that you do not have an attorney assisting you in your lawsuit. That is a mistake. If you have a decent case you should have a med mal attorney assist you or else you will lose your case, even if it is a good case. If you have attempted to hire a med mal attorney and you have asked at least three reputable attorneys and they have turned you down, then you do not have a good case and it is time to move on.
    Answer Applies to: Oregon
    Replied: 6/20/2011
    Komanapalli Massey LLP
    Komanapalli Massey LLP | Mark A. Massey, Esq.
    File your lawsuit and include all claims you have to make. Then gather the evidence by way of discovery to prepare for the trial on your claims, which will not come for more than a year in any event, after you have filed. You may have to withstand preliminary challenges by way of demurrer or motions to strike parts of your complaint, and a later summary judgment motion after the time permitted to conduct discovery has lapsed, but you should be allowed time to gather all that you require if such evidence exists, and you may use the court's processes to do so. You must, however, file before the two year statute of limitations lapses or the court will lack jurisdiction to hear those claims.
    Answer Applies to: California
    Replied: 6/20/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    The statute of limitations on a medical malpractice is 2 1/2 years from the time of the malpractice or whenever it was discovered or should have been discovered using the reasonable person test. In other words, would a reasonable person have discovered it. It appears you already have an attorney, so rely upon your attorney's advice. Good luck.
    Answer Applies to: New York
    Replied: 6/20/2011
    Rose, Senders & Bovarnick, LLC
    Rose, Senders & Bovarnick, LLC | Paul S. Bovarnick
    Your question can't be answered without knowing the facts of your case. However, if the facts in the tort claims and contract claims are similar enough, filing the one may toll the statute for the other. In most medical negligence cases the doctors negligence turns on a question of judgment. While leaving a surgical instrument in a body may be obvious negligence, a wrong diagnosis may not be. Many medical negligence cases stem from the doctor making a judgment that seemed reasonable at the time, but which later proved to be wrong. The latter kind of case does not involve a bright line distinction.
    Answer Applies to: Oregon
    Replied: 6/20/2011
    Ron Graham Attorney at Law
    Ron Graham Attorney at Law | Ron Graham
    No the limit is one year on the medical malpractice so those counts are out.
    Answer Applies to: Ohio
    Replied: 6/20/2011
    Ewusiak & Roberts, P.A.
    Ewusiak & Roberts, P.A. | Christopher J. Roberts
    Each state has its own rules that govern your statute of limitation question, and your question does not identify your jurisdiction. Generally speaking, you want to have all potential claims filed before the statute of limitations runs. There are exceptions that allow late claims, but they are very narrow and I would not count on falling into one of those exceptions unless you literally have no other option but to try. You should seek out a local lawyer who handles medical malpractice claims immediately and see what can be done to ensure that you do not miss your time window. There may a mechanism to buy yourself more time that a lawyer would know to put into motion. As it concerns your "bright line" question, I would say the answer is that every case is unique. I can imagine a type of medical malpractice that also constitutes negligence in terms of the training or qualification procedures of the medical facility, where there is overlap between malpractice and common negligence. And I could imagine a situation where a doctor's conduct could be negligent both professionally and personally, though usually it is going to be one or the other. I would need to have a lot more information to answer your question in any meaningful way that would help you under your facts. Again, it sounds to me like you need to speak with an attorney in your area immediately. I hope you are able to resolve these issues favorably to your case.
    Answer Applies to: Florida
    Replied: 2/21/2012
    Law Office of Mark J. Leonardo
    Law Office of Mark J. Leonardo | Mark Leonardo
    Not sure what you are referring to re 2 years. Personal injury cases have a two year statute of limitations. But medical malpractice cases have their own statute (Code of Civil Procedure 340.5) which provides: Action against health care provider; three years from injury or one year from discovery; exceptions; minors In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence. For the purposes of this section: (1) Health care provider means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. Health care provider includes the legal representatives of a health care provider; (2) Professional negligence means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital. Keep in mind that before filing suit, you need to serve by certified mail your notice of the intent to sue for professional negligence (pursuant to Code of Civil Procedure 364, which requires 90 days notice before you file suit). This must be served on each defendant, including the hospital. If you are within 90 days of the statute date, serving the notice extends the statute to the 90th day from when you send it by certified mail. This is called tolling. To answer your question about your other causes of action that do not constitute professional negligence requires more information. It can get very tricky to ensure you file within the statute for those causes of action and do the 364 notice for the malpractice and then file that lawsuit. I highly encourage you to speak with an attorney that does medical malpractices cases.
    Answer Applies to: California
    Replied: 6/20/2011
    The Law Office of Eric R. Chandler, P.C., L.L.O.
    The Law Office of Eric R. Chandler, P.C., L.L.O. | Eric R. Chandler
    It depends, but in Nebraska it generally is two years from when the act occurs or when you become aware of the negligent act.
    Answer Applies to: Nebraska
    Replied: 6/20/2011
    The Kelly Law Firm, P.C.
    The Kelly Law Firm, P.C. | L. Todd Kelly
    I cannot tell from this question where you are from. Jurisdictional rules are very different. These issues are also far too complicated to answer in the abstract. You should seek competent medical malpractice legal advice immediately.
    Answer Applies to: Texas
    Replied: 6/20/2011
    Wilson & Hajek,LLC, a personal injury law firm
    Wilson & Hajek,LLC, a personal injury law firm | Francis Hajek
    Medical malpractice laws are different in every state but there are some common areas. If the statute of limitations in your state is two years and an affidavit is required before filing, then you probably have to comply with this requirement if you want to pursue your claim. I do not think you will be able to add the malpractice counts after the statute expires. So do not count on being able to amend your suit to add time barred claims. I also think that there is a fairly bright line when it comes to medical malpractice cases versus other tort claims. If you are suing a doctor or other health care provider for failing to comply with a standard of care, it is a malpractice claim. I think you need to get to n experienced lawyer and see if an expert can be retained to review the file and offer an opinion on whether there was a violation of the standard of care. Don't wait and good luck.
    Answer Applies to: Virginia
    Replied: 6/20/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    Consult with a med mal firm.
    Answer Applies to: Connecticut
    Replied: 6/20/2011
    David Hoines Law
    David Hoines Law | David Hoines
    You need to consult with an attorney now the statute of limitations is 2 years but can be extended if certain things are done what you suggest won't work.
    Answer Applies to: Florida
    Replied: 6/20/2011
    Vincent J. Bernabei LLC
    Vincent J. Bernabei LLC | Vincent J. Bernabei
    You must file your med mal claim within 2 years of the alleged negligence.
    Answer Applies to: Oregon
    Replied: 6/20/2011
    Allen Murphy Law
    Allen Murphy Law | W. Riley Allen
    I would not screw around with the 2 year S/L at all. The law reads 2 years from the med mal or 2 years from the date you discovered the med mal, not to exceed a total of 4 years in Florida. You can also file a petition to extend the S/L for a small fee. The idea you're trying to handle these on your own is not a great idea. The cases are way too tough.
    Answer Applies to: Florida
    Replied: 6/20/2011
    Richard E. Lewis, P.S.
    Richard E. Lewis, P.S. | Richard Eugene Lewis
    Generally, medical malpractice cases in Washington must be brought within three years of the claimed malpractice. There are exceptions and mandatory steps so you should definitely have legal counsel to pursue a med mal case. You will not be alright if you file the non malpractice claims and later amend the complaint, if the statute has run. Whether malpractice has occurred is a matter of expert opinion, and those opinions often differ. Rare is the case that is undisputed.
    Answer Applies to: Washington
    Replied: 6/20/2011
    Painter Law Firm PLLC
    Painter Law Firm PLLC | Robert Painter
    In Texas, there is a strict statute of limitations of two years for medical malpractice claims. Your idea of timely filing for non-medical malpractice claims and amending later to add them (after the statute of limitations passed) is not allowed by Texas law. The only way to extend it is by sending a "notice letter" to the doctors or hospitals you plan to sue, describing the nature of your claim; this notice has to be sent before the two year statute of limitations expires and extends the statute of limitations by 75 days. If your claim is in Texas, feel welcome to contact me to discuss it.
    Answer Applies to: Texas
    Replied: 6/20/2011
    Lyle B. Masnikoff and Associates
    Lyle B. Masnikoff and Associates | Lyle B. Masnikoff
    You need to call a medical malpractice attorney.
    Answer Applies to: Florida
    Replied: 6/20/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    The Statute of Limitations for medical malpractice cases in the State of New York is two and one-half years. It can be extended by continuous treatment after the malpractice was committed. Sometimes notices of claim must be served within 90 days. For example against a municipal hospital, and then the action must commenced within one year and ninety days. Filing you non-med mal claims on time will not save your untimely filed med-mal claims. There is no bright line between regular negligence and med mal. If the service rendered was medical in nature, then med mal rules will apply.
    Answer Applies to: New York
    Replied: 6/20/2011
    Holzer Edwards
    Holzer Edwards | Kurt Holzer
    The statute is two years in Idaho. There is no bright-line distinction as the what-is medical negligence in Idaho. I would treat any claim arising from or related to medical care as a medical negligence claim. Idaho requires that such a claim be reviewed through the Board of Medicines pre-litigation screening review process. The law appears to be that the pre-litigation screening review tolls the statute of limitations until 30 days after the opinion of the review panel is issued. However, many attorneys prefer filing both proceeding concurrently within the statute of limitations. Adding a new claim or a medical negligence claim under a relation-back theory would be a very risky approach with a high likelihood that the claim would be dismissed. I will note that an expert affidavit is not a requirement in Idaho law at least until faced with a summary judgment motion and a very significant issue in Idaho is the local standard of care requirement. The Idaho Supreme Court has issued perhaps 40 opinions on the local standard of care issue.
    Answer Applies to: Idaho
    Replied: 6/20/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Medical Negligence is a fairly specialized field of personal injury. It has , to some degree, its own rules. Contact a PI attorney who REGULARLY handles such cases. Look for one with a local phone number. The 1-800 type tend to farm out the work in my experience.
    Answer Applies to: California
    Replied: 6/20/2011
    Aronberg & Aronberg, Personal Injury Law Firm
    Aronberg & Aronberg, Personal Injury Law Firm | David T. Aronberg
    No. You must file your med mal case within 2 years from when you realized the malpractice occurred. In Florida you can get an extension on the 2 year rule but you MUST file for the extension on or before 2 years expire. Feel free to call me at 561-266-9191 for more information and answer any further questions.
    Answer Applies to: Florida
    Replied: 6/20/2011
    Law Offices of H. Christopher Coburn
    Law Offices of H. Christopher Coburn | H. Christopher Coburn
    The statute of limitations for medical malpractice in California is in CCP 340.5. Here's part of it: In an action for injury or death against a health care provider based upon such persons alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. You may be beyond the statute for a malpractice claim. If the 2 year anniversary is coming up and you have a general negligence claim you should get it filed.
    Answer Applies to: California
    Replied: 6/20/2011
    Kelaher Law Offices, P.A.
    Kelaher Law Offices, P.A. | James P Kelaher
    In Florida, you only have two years from the date you first had reason to believe a hospital employee was negligent within which to bring your lawsuit; while I have to commend you on thinking of suing the hospital for the "non medical malpractice counts" and then amending to bring the med mal counts after you go through the presuit screening, I don't think that will work, and am not aware of any case law which allows that. However, you can file a petition for automatic extension of time which will extend the statute of limitations for a period of ninety days. You may wish to consider doing that as it will give you three more months to obtain your affidavit and send it to the hospital by certified mail, return receipt requested as the statute dictates. While I am unaware of any "bright line" distinction (for example, there's a case that has held that someone who slipped and fell in a hospital did not have to comply with the presuit screening rules, but I have always believed it is better safe than sorry, and have always gotten an affidavit and presuited everything against any health care provider as defined under Florida Statutes. You also need to be aware that there is a four year statute of repose provision that requires you to bring your claim within four years of the health care provider's actual act of negligence, or you will be barred from sustaining your claim against the health care provider. It's always a safe bet to get an attorney familiar with the medical malpractice "hoops" which you have to jump through to represent you.
    Answer Applies to: Florida
    Replied: 6/20/2011
    Coulter's Law
    Coulter's Law | Coulter K. Richardson
    File the medical malpractice case now! Depending on the state, you will have a period of time after filing the complaint to obtain an affidavit of merit. Usually it is around 60 days. If the statute runs before you file the complaint you are out of luck.
    Answer Applies to: New Jersey
    Replied: 6/20/2011
Click to View More Answers:
12 3 4 5 6 Free Legal QuestionsConnect with a local attorney