All states have specific deadlines for filing personal injury cases in general and medical malpractice lawsuits in particular. These deadlines are set by laws called "statutes of limitations." Statutes of limitations are complex because most states have special rules for calculating:
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. Patients 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 medical malpractice in your state is three years. If you were harmed by a botched surgery on September 1, 2023, you would have until September 1, 2026 to get your lawsuit filed, unless an exception applies.
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. The issue of tolling—and when it is or isn't appropriate—is complicated. Talk to a lawyer if you've missed the deadline to file your malpractice lawsuit and you think an exception applies to your case.
To calculate the statute of limitations, you need to know when the clock starts running. In some situations, it starts as soon as the malpractice occurs. In other instances, something called the "discovery rule" applies.
The discovery rule is an exception to the standard filing deadline. The purpose of the rule is to protect patients 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 in the eyes of the law) that they were a victim of malpractice. The key is that the patient didn't know—and couldn't reasonably have been expected to know—about their health care provider's medical negligence before then.
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).)
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).)
Medical malpractice cases are some of the most complicated kinds of personal injury cases. They require a deep understanding of the intersection between 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.