Futterman, Sirotkin And Seinfeld, LLP
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Pursuing a Medical Malpractice Claim: Be Aware of the Statutes of Limitations


If you have been injured through a doctor’s negligence, you may feel that you should adopt a “wait-and-see” approach with respect to your injury, or perhaps you don’t “feel up to” deciding whether you want to pursue your legal remedies. You should, however, bear in mind that the law requires you to pursue legal remedies sooner rather than later. This requirement is generally known as “statute of limitations.” If you fail to file your claim within the statute of limitations you may be forever barred from bringing your claim, regardless of the merit of your claim. Finally, statutes of limitations applicable to medical malpractice actions are often shorter than for other types of personal injury actions. Therefore, even if you do not think you will be bringing a lawsuit , consulting with an experienced personal injury attorney is essential to determine if any action should be taken to preserve your potential claim.

If I have a valid claim, why do the courts care when I file it?

Historically, there were no limitations of time on bringing a claim for injury to property; the only limit on a claim for injury to a person was the length of the lives of the people involved. If the plaintiff died as a result of the injury, the claim died with him. If the defendant died the day he was sued, the case was over. The problem with this system was that often claims would not be brought until many years after the triggering event occurred. In the years between the original injuring event and the subsequent claim, witnesses might have died or moved away, and documents or other evidence might have been destroyed. When witnesses were not dead or missing, they often had poor recollections of the events leading up to the lawsuit . All of these deficiencies in proof, brought about by the passage of time, left the court in a less than ideal position for delivering justice.

Historically in England, the “doctrine of laches” was the Court of Equity’s solution to this problem. Laches was a defense that could be asserted by the person being sued. Basically, a person asserting laches said to the plaintiff, you knew you were injured or wronged, you waited an unreasonably long time to bring your claim, you have no excuse for waiting that long, and because you waited so long you have prejudiced my ability to defend myself. The problem was that laches only applied in cases before the Court of Equity. (There was also a Court of Law.) So, eventually the English Parliament, in the time of King Henry VIII, came up with the first law that limited the time allowed for bringing suit . This first law did not apply to personal actions; it only applied to real (land based) actions. Later, under King James I, the English Parliament extended the time limitation law to include personal actions. This early English law served as the basis for the statutes of limitations in effect today.

Today, limitations for bringing claims exist by effect of statute for most types of injuries including medical malpractice claims. Unlike the doctrine of laches, the court will not look at the facts surrounding the delay in bringing a claim. The reasonableness of the delay is not generally an issue. Once the time limit for bringing your claim has run out, you may be forever barred from bringing your claim. When the time is up, it is said that the statute of limitations has run.

A true statute of limitations is simply a limitation on exercising an already existing right. A statute of limitations operates as a bar to bringing your claim. It does not extinguish the underlying claim. As noted above, long before statutes of limitations were enacted, the only absolute time limit on a personal claim was the lives of the people involved in the dispute. If either party died, the claim died too. This problem was “fixed” by the enactment of special laws known generally as wrongful death statutes. A wrongful death statute makes it possible to present a claim even after the injured person has passed away. Thus, the statute creates a right where none existed before. A wrongful death statute usually defines both the type of injury that may be claimed and the time during which the claim may be made. Because the right or claim is created by statute, the right only exists for the period of time set forth in the statute. In effect, bringing the claim within the stated time period is necessary for the claim to exist at all. While this kind of limitation is not a true statute of limitation, its effect is essentially the same from the perspective of the claiming party.

Courts take different views on when the statute of limitations begins to run in medical malpractice cases. To some extent, the difference in these views is a reflection of the wording in the statutes. The difference also reflects the courts’ views on the relative merit of protecting injured parties versus protecting medical providers by enabling them to defend themselves when records are still in existence and recollections are still fresh.

In some courts, the time for filing a claim begins to run upon the occurrence of the act or omission the plaintiff claims constituted malpractice. Other courts say that the time begins running when the act or omission results in injury. Another view is that the time begins to run when the plaintiff discovered or should have discovered he or she was injured. A fourth view is that the time begins to run when the treatment concludes.

Things get even more complicated when the injured party dies. In the case of malpractice causing death, the courts must first decide whether the wrongful death statute applies or whether the statute of limitations for medical malpractice applies. Once that is decided, the court must then decide what triggers the running of the statute of limitations. The courts may say that the statute begins to run when the plaintiff dies. Or the court may decide that the statute begins to run when the action that allegedly caused the death occurs. Another court may decide that the time begins to run when the plaintiff discovers or should have discovered the harm done or that the death was caused by malpractice. Yet another view would be that the statute of limitations begins to run on the date of the last treatment, which may or may not be the date of death or the date the plaintiff discovered the harm done by the malpractice.

Regardless of the approach taken by the courts in deciding when a plaintiff’s claim accrues or begins, statutes of limitations remain primarily pragmatic devices used by legislatures and courts to control litigation. Because the reasons underlying statutes of limitations have not traditionally been considered “fundamental rights”, the policy of repose expressed in a statute of limitations is frequently outweighed where the interests of justice require a vindication of rights. When a plaintiff has not slept on his or her rights, but rather, has been prevented from asserting them, a court will often take this into consideration. Thus, while theoretically, a court only looks at whether you filed your claim within the required time period, in actuality many factors can come into play in the operation of the rule. An experienced attorney can determine when the time period for filing your claim began and whether that time period might be lengthened due to certain circumstances such as your age, fraudulent concealment by the defendant, or the existence of a disability which prevented you from filing a claim within the limit set forth in the statute of limitations.


A statute of limitations cuts off a plaintiff’s right to seek a remedy for an injury. Many of the triggering events for the statute of limitations are tied to what a plaintiff knew or should have known about his injury and its cause. It is, therefore, important to consult an experienced attorney promptly when you have been injured. An experienced attorney can analyze the facts surrounding your case to determine the following: when the malpractice occurred, when you would have been reasonably expected to know you were injured, whether the time for filing a claim can be lengthened due to the circumstances of your case, and what recourse you may have for your injury.