What is the statute of limitations and how does it affect my case?
Every state has an arbitrary time limit within which a plaintiff must file a claim in court or lose their rights to sue forever. The statute is not the same in every state, and even in California, the rules are different between medical malpractice cases and other types of claims. California recently changed the rule for most personal injury claims, including auto accidents, from one to two years. However, the rule for medical malpractice cases is still one year from the date of the negligent act or date of death. In a wrongful death case, the date of death is very specific and unalterable. In cases where the plaintiff is alive and brings the claim, the date of the negligent act may not be known by the plaintiff. In such cases, the rule allows a plaintiff to bring a claim within one year of when the plaintiff first became aware of, or should have been aware of, the negligent act. Thus, a plaintiff who claims a delayed cancer diagonosis or a misdiagnosis of cancer would have one year from the date of a correct diagnosis to file a claim involving the earlier negligence. Because the correct interpretation of this statute in such cases may involve a knowledge of case precedents and other legal issues, it is best to consult with an experienced medical malpractice attorney whenever there is any question about the statute of limitations.
There are two significant exceptions to the general rule of one year for medical malpractice cases. First, in cases involving a child under age six, the malpractice action must be filed within 3 years of the date the injury occurred or before the minor’s eight birthday, whichever period is greater.
Second, in cases where the hospital is owned or operated by a county or local administrative agency, a claim must be filed within six months of the birth, death, or negligent act, and such claims are a prerequisite for any claim in court. As such, the failure to file an administrative claim within six months of an incident requires the court to dismiss the lawsuit. There is a limited exception for a child, who can request that the court allow the filing of such a claim for a period of up to one year from the incident. In many smaller counties, the local hospital is owned and operated by a hospital district, which would require a claim to be filed before any lawsuit.
Again, because the law in this area is very specific and unlike the laws in other personal injury or death cases, it is important to consult an attorney with experience in all types of medical malpractice claims.