Can You File a Personal Injury Lawsuit After the Statute of Limitations Has Run?

The statute of limitations is a claim killer, but the discovery rule and tolling rules might keep your claim alive.

Updated by , J.D. | Updated by Dan Ray, Attorney

A statute of limitations is a time limit on how long you have to file a lawsuit after you've suffered an injury. If you don't file your complaint (the document that starts a lawsuit) before time runs out, you lose your right to sue forever. The statute of limitations, in other words, is a claim killer.

The good news is that there are some exceptions to the statute of limitations—the "discovery rule" and "tolling rules"—that might rescue your claim from the brink of death. The bad news is that convincing courts these exceptions apply is, to put it mildly, an uphill battle.

In this article, we'll explain:

  • the way a statute of limitations works
  • how the discovery rule keeps the statute of limitations from starting to run, and
  • different tolling rules that might buy you some extra time to file your claim.

How a Statute of Limitations Works

You might find it helpful to think of the statute of limitations as a clock counting backward toward zero. The clock begins to run on the date your claim "accrues," which, in some states, is the date you discover or should have discovered that you were injured. Other states have modified this rule so that the clock starts to run when you discover or should have discovered that you were injured and what caused your injury. (For more information, see "The Discovery Rule," below.)

In most personal injury cases, you know you're hurt right away. You probably also know what caused your injury. Most often, then, the statute of limitations clock starts to run on the date you were injured.

Unless something stops it (see "Exceptions to the Statute of Limitations," below), the clock continues to count down until it gets to zero. Once the clock gets to zero, your personal injury claim is, as lawyers and judges say, "time-barred." In the simplest terms, it's legally dead. If you try to file a lawsuit after that date, the court will have no choice but to dismiss your case.

Every state has its own statutes of limitations for injury claims. (You can read about personal injury statutes of limitations for all 50 states and the District of Columbia.) Claims under federal law have their own statutes of limitations.

Some kinds of claims—for example, medical malpractice claims and claims against the government—often have special statutes of limitations that require you to act more quickly. On the flip side, states sometimes create special statutes of limitations that are more generous. Sexual assault claims are an example.

As a rule, if there's a conflict between a general statute of limitation (say, one that applies to "injury claims" or "claims for personal injury") and a specific statute of limitation (one, for instance, that applies to "claims alleging medical negligence or malpractice"), the more specific statute will apply. The more specific statute is usually the one with the shorter time limit.

Statutes of limitations can be very complex, which is one of the many reasons why plaintiffs with difficult cases should have legal representation.

Exceptions to the Statute of Limitations

Oftentimes there are exceptions to a statute of limitations, and even exceptions to those exceptions. These complicated rules help make statute of limitations issues some of the most difficult in all of the law.

There are two primary kinds of exceptions to the statute of limitations, both of which can help a plaintiff:

  • the "discovery rule," which prevents the statute of limitations clock from starting to run, and
  • "tolling rules," which keep the statute of limitations clock from starting to run, or stop the clock after it's started.

The Discovery Rule

Most states follow the "discovery rule." The idea behind it is simple: Your injuries might not appear right away. And even if you do know you're injured, you still might not know who or what caused your injury. Without this information, it can be difficult to file a lawsuit.

Each state's discovery rule is unique. Be sure you know what your state's rule says and how it works. In general, we can divide the states into two camps.

Camp 1: "Injury" states. In an injury state, the discovery rule keeps the statute of limitations clock "on hold" (in legalese, your claim doesn't "accrue") until the earlier of the date that you actually discover or should have discovered your injury, if you were being reasonably diligent.

Camp 2: "Injury-plus" states. In an injury-plus state, your claim doesn't accrue until the earlier of the date that you actually discover or should have discovered your injury plus some additional information—like who or what caused your injury—if you were being reasonably diligent.

Some states are both Camp 1 and Camp 2 states. That is, they follow Camp 1 for some kinds of injury claims and Camp 2 for other kinds of injury claims.

Finally, some states are neither Camp 1 nor Camp 2 states. They have their own version of the discovery rule, but it's keyed to something other than the plaintiff's injury. Make sure you know what your state statutes of limitations say about your particular kind of claim.

If you try to rely on the discovery rule, be prepared. The other side will argue that you knew you were hurt—or should have known you were hurt—before you say you did, and that you shouldn't get the benefit of any delay. You must convince the court that a delay is legally proper. If your case gets to this point, you need an experienced lawyer to handle the statute of limitations issues.

Let's look at a couple of examples to see how the discovery rule works.

Limits on the Discovery Rule: Statutes of Repose

The discovery rule provides some help, but it isn't a "get out of jail free" card. For starters, you must prove to a court that it applies. As our examples show, whether and how the discovery rule might apply is a case-by-case question, one you can expect your opponent to fight vigorously.

In addition, every state has enacted a second time deadline, sometimes called a "statute of repose," that puts another limit on the time for filing certain lawsuits. In Florida, for instance, 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 … ." (Fla. Stat. § 95.11(4)(b)(2022).)

So even if the discovery rule gives you relief from the two-year limitations period, you can't (with limited exceptions) file a Florida medical malpractice case later than four years after the date of the doctor's negligence.

Tolling Rules

A number of "tolling" rules—rules that keep the clock from starting, or stop it after it's started to run—may provide temporary relief from the statute of limitations.

It's up to each state (or, in the case of claims under federal law, the federal government) to decide what tolling rules are available, and when. Sometimes tolling rules are statutory (enacted by the state legislature or Congress), while other times they are created by courts.

Here are some of the most common tolling circumstances:

  • the plaintiff is a child
  • the defendant has left the state
  • equitable tolling, when plaintiffs cannot, before the statute of limitations runs out, discover the facts needed to know whether they have a legal claim, and
  • equitable estoppel, when the defendant's improper conduct causes the plaintiff not to sue.

Injured Child

In most states, if the plaintiff was injured as a child, state law prevents the statute of limitations clock from starting to run until the plaintiff reaches the age of 18. This rule is pretty straightforward. Here's a quick example:

Special Rules Might Apply

As with the statute of limitations rules applicable to adults, special rules often apply to claims brought by minors. Recall that in Florida, the basic medical malpractice statute of limitations is two years, but in some circumstances, the statute of repose extends that to a maximum of four years from the date of the doctor's negligence.

There's an exception to the Florida statute of repose for medical malpractice claims brought on behalf of very young children. The statute says that the four-year time limit doesn't bar any malpractice claim filed in court on or before the child's eighth birthday. (Fla. Stat. § 95.11(4)(b)(2022).) Check your state law for similar special rules pertaining to suits filed on behalf of children.

Defendant Leaves the State

In most states, if the defendant leaves the state before the statute of limitations clock runs out, the clock either will not start running or will be paused for the period the defendant is gone.

Vermont law illustrates. If a defendant is outside of Vermont when the plaintiff discovers that the plaintiff is injured (that is, when the plaintiff's claim accrues), the statute of limitations clock begins to run when the defendant returns to the state. If the defendant leaves Vermont after the clock has started to run, and the defendant doesn't have property in the state that can be attached, the clock stops for the period the defendant is away. (Vt. Stat. tit. 12 § 552 (2022).)

Some states have a similar tolling rule that applies for any period of time when the defendant isn't necessarily out of the state but is in hiding.

Check State Law for Specifics

As with all statute of limitations questions, you'll need to check your state law for specifics—or, better yet, rely on an experienced attorney for guidance.

In some states, the law says the limitation period is tolled if the defendant is absent from the state but doesn't specify any length of time the defendant must be away. In other states, the defendant must be out of state for some specified period, like four months or a year.

Equitable Tolling

Many states pause the statute of limitations if the plaintiff has been injured but, despite diligent efforts to find out, doesn't have enough information to know:

  • whether they have a legal claim, or
  • if they have a legal claim, whom they should sue.

If you're relying on equitable tolling to save your case, don't go it alone. You need an experienced lawyer on your side. Without help, your claim is probably doomed.

Equitable Estoppel

"Equitable estoppel" sounds a bit like "equitable tolling," and people sometimes confuse them. Here are the critical differences.

First, with equitable estoppel, the plaintiff knows who the defendant (or likely defendant) is; in an equitable tolling situation, the plaintiff might not have this information.

Second, equitable estoppel requires a finding by the court that the defendant's misconduct caused the plaintiff not to sue before the statute of limitations expired.

Getting Legal Help With Statutes of Limitations

While we've covered a lot here, there are even more (and more complex) statute of limitations rules that might affect your personal injury case.

You have too much at stake to go it alone. Remember, the statute of limitations is a claim killer. Courts are unforgiving if you err and file suit after the clock has reached zero.

This article includes references and citations to state statutes. When we've cited a statute, the parenthetical year (2022) indicates the last year we checked the statute, not the year the statute was enacted. Keep in mind that statutes can change, so it's always a good idea to check them. How courts interpret and apply statutes can also change. These are just some of the reasons why you should think about hiring a personal injury attorney if you're concerned about the statute of limitations on your claim.

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