What is the Statute of Limitations for Medical Malpractice Lawsuits?

Learn about the four different ways the "statute of limitations" might come into play in a medical malpractice case.

Updated by Stacy Barrett, Attorney

All states have specific deadlines for filing personal injury cases in general and medical malpractice lawsuits in particular. These deadlines are called "statutes of limitations." Statutes of limitation are complex because most states have special rules for calculating when the "clock" starts and when time runs out.

The Standard Deadline for Filing a Medical Malpractice Lawsuit

The statute of limitations sets the standard deadline for filing a civil lawsuit. Deadlines vary by state, but most states allow victims of malpractice somewhere between two to six years from the date of their injury to file a lawsuit. Victims who don't file their lawsuits within that time frame lose their right to sue unless an exception applies.

So, let's say that the standard statute of limitations for malpractice in your state is three years. If you were the victim of a botched surgery in January 2023, you would have until January 2026 to get your lawsuit filed unless an exception applies

Find the malpractice statute of limitation in your state.

Exceptions to the Statute of Limitations

Like most rules, there are exceptions to the statute of limitation. Sometimes the statute of limitations is suspended ("tolled") for a period of time and then begins to run again. Cases dealing with tolling are complicated. Talk to a lawyer if you've missed the deadline to file your malpractice lawsuit and think an exception applies to your case.

The Discovery Rule

To calculate the statute of limitations you need to know when the clock starts running. In some cases, it starts as soon as the malpractice occurs. In other cases, the discovery rule applies. The discovery rule is an exception to the standard filing deadline. The purpose of the rule is to protect victims of malpractice who might not have known that they had a potential malpractice case. For example, a patient who was misdiagnosed might not know about the misdiagnosis until many years later and long after the standard statute of limitations has passed.

The discovery rule varies from state to state, but when it applies, the clock starts running when a patient actually knows or should've known that they were a victim of malpractice. An example of one's state discovery rule might be: "the statute of limitations time period begins: 1) on the date on which the medical malpractice occurred, or 2) on the date the patient knew or had sufficient notice to know that they were harmed by medical malpractice."

The Statute of Limitations for Minor Children

Most states have different filing deadlines for medical malpractice cases involving minors (children under the age of 18). Some states don't start the statute of limitations clock running until a minor malpractice victim turns 18. Other states extend the time period to file by a few years. For example, in Montana, if the victim of malpractice is younger than four years old at the time of injury, the statute of limitations begins to run on the child's eighth birthday.

If your malpractice case involves a minor victim, you should talk to a lawyer to figure out how much time you have to file your lawsuit.

(Montana Code § 27-2-205 (2022).)

Limits on the Discovery Rule: Statutes of Repose

The discovery rule will only get you so far. Many states have a second set of deadlines, sometimes called "statutes of repose," that set another time limit for filing lawsuits. For example, in Florida, the medical malpractice statute of limitations is two years. But the statute goes on to say that "in no event shall the action be commenced later than 4 years from the date of the incident...out of which the [claim] accrued." So even if the discovery rule gives you relief from the two-year statute of limitations in Florida, you likely can't file a Florida medical malpractice lawsuit later than four years after the date of the medical negligence, unless your claim involves a minor.

(Fla. Stat. § 95.11(4)(b)(2022).)

Talk to a Lawyer

Medical malpractice cases are some of the most complicated kinds of personal injury cases. They require a deep understanding of law and medicine, the ability to comply with complex procedural rules, and a willingness to stand up to medical professionals and insurance companies. Having a lawyer by your side can make all the difference.

Learn more about how to find the right lawyer for your medical malpractice case and how to pay for a medical practice lawyer. You can also connect with a lawyer directly from this page for free.

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