The statute of limitations limits the amount of time an injured person has to file a suit after an injury. They can be confusing and not knowing how they work can cost you your right to sue.
Arizona’s limitation period for personal injury, including medical malpractice, is two years. http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/12/00542.htm&Title=12&DocType=ARS The time begins to run when the cause of action accrues. This is legal talk meaning when you first have a right to sue. As a practical matter, in the medical malpractice context you usually first have a right to sue as soon as you have been injured. In the case of a death, the statute begins to run on the date of death. There are exceptions, however, and that is where you can get in trouble.
One exception deals with the fact that, even though you may know that you have been injured, you may not realize immediately that you have been injured through medical negligence. You may not discover that the cause of your injury was medical negligence for months or even years. The statute of limitations does not begin to run until you either discover that you have been injured through medical negligence or until you should have discovered that fact, had you been acting carefully. This is called “the discovery rule.” If at all possible, you want to sue within two years of the date of the injury, regardless of when you learned that you were injured by medical negligence. The reason is that if you sue more than two years after the date of the injury, the defendants will always claim that you should have known about the claimed medical negligence right from the start and that your suit is too late. If the jury agrees that you should have known more than two years before you filed suit, your case will be thrown out.
Another exception is for minors. The two year limitation period for a minor begins to run on his or her eighteenth birthday.
A critical exception to the two year limitation period applies if the defendant is a state employee or a state entity. If the person or entity providing the care is a state employee or a state entity, the statutes relating to claims against the state take precedence over the normal two year statute. You may have been treated by someone who falls into the category of state employee without realizing it. For example, many new doctors who are in residency programs take the position that they are state employees if their program is run through the University of Arizona. If the claim is one against an agency of the state or a state employee, a notice of claim must be served within 180 days of the accrual of the cause of action. http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/12/00821-01.htm&Title=12&DocType=ARS The notice of claim must describe the nature of the injury and the basis of the claim. It must also set forth a specific sum for which the claim can be settled. If the claim is not accepted, suit must be brought within one year of the accrual of the cause of action. http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/12/00821.htm&Title=12&DocType=ARS
People who are injured by medical negligence after a workplace injury for which workers compensation benefits are received have only one year in which to sue. After the first year, the right to sue passes to the carrier which paid the benefits. That carrier can, but need not, reassign the right to sue to the injured worker who would then have whatever is left of the original two years.
When someone comes to see us about a possible malpractice claim, it takes us at least a couple of months to do the investigation we must do before we are ready to file suit. We have to interview the prospective client, obtain and review the complete medical records, send the medical records out for expert witness review, consult with the experts and prepare the pleadings. We also would like to file at least six months before the statute of limitations expires in case the defendants we sue claim that someone else is at fault. If they do that, we want to still have time to add that someone else to the lawsuit before the statute of limitations expires.
All of this means that you should see a lawyer as soon as you realize that you have a significant injury which may be the result of medical negligence. The sooner you come, the more time we will have to analyze your case and make sure to get it filed before whatever the appropriate deadline may be. The last thing you want to hear if you have been seriously injured is that you had a good claim but you waited too long and it is now too late to sue.
