The Statute of Limitations Can Kill Your Malpractice Case

Every state has a statute of limitations for civil claims.  The statute, which may actually be a series of statutes, sets deadlines by which a claim must be filed or the right to sue is lost.  There are usually different deadlines for different types of claims.  In Arizona, the statute of limitations for personal injuries, which is the category that includes medical malpractice cases, is two years from the date the claim arose.  For many reasons, this is far less simple than it may sound.

Close up of time expired indicator on a parking meter. - HRWatchdog

It is difficult to overstate the importance of the statute of limitations.  You may have the greatest case in the world, but, if you file it a day late, you will lose.

One of the first potentially difficult questions is when did your malpractice claim arise?  It is pretty easy to determine when an automobile accident occurred that resulted in a broken leg.  It may be far less clear when, during a two week hospitalization, the patient suffered a nerve injury to her leg.

Another difficult issue arises when someone makes a mistake but the harm does not occur immediately.  The rule is that the claim does not arise until there is both a mistake and resulting damage.  Despite the rule, it may be risky to wait to sue more than two years after the mistake was made, even though there was no immediate damage.  You will almost always face a motion to throw your case out of court, so it makes sense to file early to be on the safe side.

There are some exceptions to the two year rule.  Some help the patient and some harm the patient.  One of the first and best exceptions for the patient is that the statutory period does not begin to run until a person using reasonable care would realize that she had been injured by medical negligence.  One example is a sponge left behind during a surgery.  The patient is not usually going to realize immediately that she has been injured.  The abdominal pain she is experiencing may be attributed to pain from the incision.  It may not be until someone takes an x-ray a year or more later that she realizes her pain is due to a sponge left inside her.  In this case, the statutory period would begin to run on the day she learns of the x-ray result.  This is called the “discovery rule” or “discovery exception” to the statute of limitations.  While the rule protects the patient from an unknown injury, there will almost always be a dispute over when a person exercising reasonable care should have realized they had been injured by a medical mistake.  The defense will undoubtedly argue she should have suspected her abdominal pain was due to medical negligence sooner and begun to investigate that possibility.

Perhaps the most important exception to the two year rule which harms patients arises when a defendant is an employee of the state or is the state itself.  The courts have held that some doctors and residents working at certain hospitals or in certain programs are employees or agents of the state.  If your claim is against someone who is an employee or agent of the state, you must serve a Notice of Claim on the employee and a number of other officers within 180 days of the day the claim arose.  If the claim is not accepted, and it almost never is, you must then file within one year of the date the claim arose.  The Arizona Notice of Claim statute, A.R.S. Section 12-821.01, is very specific about what must be in the Notice of Claim and upon whom it must be served.  Many people correctly believe that the Notice of Claim statute was created by the Legislature as a trap for the unwary.  Any technical failure to comply with the Notice of Claim statute will result in the case being dismissed.

As you can undoubtedly see by now, the statute of limitations can be tricky and can kill your case.  For example, you may have no idea that one of the doctors treating you is an employee of the state.  You may not contact a lawyer to see if you have case until more than six months after you discovered you were injured by medical negligence.  By then it may be too late to file a Notice of Claim.

Even if your potential medical malpractice case does not involve an employee or agent of the state, the sooner you contact a good medical malpractice lawyer, the better.  Any good malpractice lawyer is going to have to do a number of things to determine if you have a good case or not.  This will involve getting the relevant medical records, interviewing you and your witnesses, retaining potential expert witnesses to review the records, and performing medical and legal research into the issues raised by your case.  All of this takes time and, if you contact the lawyer too close to the expiration of the statute of limitations, she or he may not have enough time to investigate your case and may turn you down for that reason alone.

If you think you may have been the victim of medical malpractice, don’t wait.  Contact a good malpractice attorney promptly and let him or her evaluate your case.  If you wait too long, you may discover that the statute of limitations has barred your claim.

Posted in disclosure of medical mistakes, Doctors, Hospitals, Lawsuits, medical charts, Medical Malpractice, medical malpractice cases, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, plaintiff, retained surgical instruments, Statute of Limitations |