No parent should ever have to think about filing a claim or a lawsuit after their child is born. It should be a happy and joyous time. Unfortunately, every state has rules, laws and deadlines that require claims and lawsuits to be filed within a certain amount of time. If one of these deadlines is missed, the parents and the child can lose out on the chance to recover damages for the negligence of doctors and other medical providers.
What Sort of Time Limits are there to Bring Claims and Lawsuits?
We can’t tell you the exact deadlines here because they vary by state, and also by the health care provider. Many variables will depend on exactly what happened during the course of your medical treatment. Some states even have exceptions to the deadline rules which can apply in select cases.
In general, however, there are two types of deadlines—notice requirements and statutes of limitation. Notice deadlines set the timetable to notify a specific entity, usually a governmental agency if the negligent medical care was carried out by government doctors, that you are going to be pursuing a claim. It is not a lawsuit, but simply gives that entity advance notice of the claim, so that they can preserve evidence, like medical records, and witness testimony.
The second deadline is known as the statute of limitations. It sets the time by which a lawsuit must be filed, if the case has not already settled. If a lawsuit is not timely filed, there is no more opportunity to bring a claim.
Examples where a notice deadline may apply include:
- Delivery in a military hospital or facility
- Delivery in a prison
- Delivery by a paramedic who works for a county or city
- Delivery in a county-run or state-run hospital
Some states have rules that require notice to be given within 180 days or even less. That notice is usually in a prescribed format, and must contain very specific information in order to be valid. If one item of information is omitted, the chance to bring a lawsuit may be forever waived.
Statutes of Limitation
The other deadline is called a statute of limitation. Like notice requirements, the exact amount of time varies from state to state. In most states, lawsuits must be filed within one, two or three years of the negligent medical care. If that deadline is missed, the child and the parents may be forever prevented from recovering in a court of law.
Importantly, there are sometimes exceptions to a particular statute of limitations. One example that many states have is for the “discovery rule.” That exception essentially provides that the injured party (or his/her parents) could not have discovered that their child was injured within the statute of limitations, and they may be granted a little extra time to file. Claiming the discovery rule for a late-filed case can be tough, and should not be relied on if at all possible. Many courts assume that if a child is injured at birth, the parents are automatically on notice that medical malpractice may have caused the injury.
Another common exception is that the child may have a separate claim from the parents, and that child’s claim may be longer. Some states even provide that a child’s claim doesn’t begin until the child reaches the age of majority (usually considered to be age 18). So, even if the parents’ claim is expired, a child may be able to file his or her own lawsuit—often to include the same or similar damages that the parents’ claim had. Remember—this is a state-specific rule, and some states do not have significant extensions.
One more benefit is simply piece of mind. Our medical malpractice lawyers will listen to you, examine your medical records, consult with our experts, and tell you whether we think you have a meritorious claim for medical malpractice. If not, you can know that you have done what’s necessary to figure out the answer to what happened during pregnancy, labor and delivery. If so, you have a chance to bring justice for your family.
One final note—if there is any possibility that your child was injured because of medical malpractice, it is best to contact a lawyer as soon as possible. These claims may take some time to investigate because of the sheer volume of medical records and expertise needed to evaluate. Many lawyers will not take a claim if there is a very short time to investigate and file.