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Chapter Two: How Much Time Do I Have To File?

In litigation, as in life, opportunity is not a lengthy visitor. This is especially true when filing a claim for medical malpractice. The legal system sets strict requirements based on the facts and circumstances of each medical malpractice case. However, these limitations can be overcome if the proper actions are taken.

Each state has set time limitations for filing specific types of negligence claims, including medical malpractice claims. These prescribed time limits are covered by “statutes of limitations.” When the timeframe established in a statute of limitations has run out, a plaintiff’s claim, no matter how strong a case it might be, will likely be barred by the courts and will almost certainly be dismissed before a judge or jury ever gets a chance to hear it.

For example, in California, under California Civil Rule of Procedure §340.5, a claim for medical malpractice must be brought by a plaintiff within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”[1] In other states, the statute of limitations can be longer. So you should consult a lawyer of your choice concerning this. Reasonable diligence generally means that a person in the same or similar circumstances would have, or should have, discovered that they were injured due to the mistakes of a medical professional. If you wake up from a surgery and suddenly can’t walk, a reasonable person would probably think that something went wrong.

The laws of the various states can have additional requirements. In California, for example, on top of that statute of limitations, before bringing a claim for medical malpractice, §364 (a) of the rules of Civil Procedure requires a plaintiff to provide a healthcare defendant with at least 90 days’ notice of the plaintiff’s intent to file the medical malpractice claim.[2] This means sending notice to all prospective defendants. For example, for a wrongful death suit where a plaintiff/decedent died in an emergency room, the surviving family members may have a case against the emergency medical technicians, the ambulance drivers, the physicians, and the nurses. But the plaintiffs will only have a case against each of these entities if each receives proper notice of the claim.[3] In California, under §364 (b), no particular form is required to be sent to the health care defendants, as long as the documents sent provide notice of the legal grounds for the claim, the type of loss sustained, and the type of injuries suffered.[4] Under §364 (d), if the notice of the plaintiff’s intention is filed within 90 days from the deadline for filing a lawsuit, the plaintiff will gain additional time – up to 90 days – to file the lawsuit.[5]

As with most rules, there are often exceptions to the statute of limitations which “toll,” or place on hold, the statute of limitations. These include where a medical instrument is left inside of a patient’s body as a result of a botched or negligently-performed procedure.[6] Where the left-behind object has no therapeutic purpose and no diagnostic purpose (think a surgical knife or piece of gauze left inside of a patient’s body, rather than an artificial knee or a heart stent), the statute of limitations for medical malpractice may be tolled.[7] However, the plaintiff is still bound by the discovery rule. In most states, tolling also occurs in instances of fraud, or the intentional concealment of a medical mistake by either a medical professional or an insurance provider.[8]

If you have a potential medical malpractice claim, you should promptly contact and consult with an attorney of your choice concerning all deadlines and all statute of limitation rules.

In most states, another example of an “exception,” or a toll, is where the plaintiff is a minor child (i.e. someone under the age of 18), and the child’s guardian or parents are bringing a case on the child’s behalf. In California, for example, under §340.5 of the Civil Procedure Rules, if the plaintiff is a child, the lawsuit must be commenced within three years of the alleged malpractice.[9] If the child is under the age of six, the guardians/parents have until the child’s eighth birthday or three years, whichever time period is longer.[10] If the plaintiff was specifically injured before or during birth, such as by the alleged medical malpractice of the obstetrician, then the parents/guardians have up to six years from the date of childbirth to sue.[11]

In California, according to the Judicial Council of California, additional reasons for tolling the statute of limitations in a medical malpractice claim could include: the defendant’s absence from the state of California (California Civil Procedure §351)[12]; the plaintiff’s mental disability or incompetence (§352)[13]; imprisonment (§352.1)[14]; or the court taking over the practice of the attorney representing the plaintiff (§353.1).[15]

We know that doctors, nurses, hospitals and other health care providers can make mistakes that have lasting consequences on people’s lives. The exceptions to the statutes of limitations provide slight relief for these people who want to file a medical malpractice claim. Still, certain other rules may benefit defendants.

Government entities sometimes have special procedural requirements for the filing of claims, which make suing them more challenging. For example, in California, under the California Tort Claims Act, §911.2 (a), a plaintiff has to file a claim with the government entity within six months of the date of the incident.[16] For example, in order to sue a state-run psychiatric institute for medical malpractice, a plaintiff would have to serve the institute with a notice on a specific form outlining the details of his or her claim. According to the California Courts’ website, “after you file your claim, the government has 45 days to respond. If the government agency denies your claim during the 45 days, you have 6 months to file a lawsuit in court from the date the denial was mailed or personally delivered to you.”[17] These notice rules are designed to allow a public entity time to investigate claims, correct conditions and practices that led to the claims, and potentially, settle the claims, prior to a lawsuit being filed. Importantly, the limitations for commencement of actions against the state and its subdivisions, including state healthcare providers, can override some traditional forms of tolling.[18]

Again, if you have a medical malpractice claim, you should consult at once with an attorney of your choice who practices medical malpractice representation in your state.


[1] Cal. Civ. Proc. Code § 340.5 (West 1975).

[2] Id. at § 364 (a) (West 1975).

[3] Id. at § 364 (a) (West 1975).

[4] Id. at § 364 (b) (West 1975).

[5] Id. at § 364 (d) (West 1975).

[6] Cal. Civ. Proc. Code § 340.5 (West 1975).

[7] Id. at § 340.5 (West 1975).

[8] Id. at § 340.5 (West 1975).

[9] Id. at § 340.5 (West 1975).

[10] Id. at § 340.5 (West 1975).

[11] Id. at § 340.4 (West 1994).

[12] Id. at § 351 (West 1872).

[13] Id. at § 352 (West 2015).

[14] Id. at § 352.1 (West 1994).

[15] Id. at § 353.1 (West 1983).

[16] Cal. Civ. Proc. Code § 911.2 (a) (West 2016).

[17] Statute of Limitations, California Courts: the Judicial Branch of California, http://www.courts.ca.gov/9618.htm (last visited Sept. 17, 2019).

[18] Cal. Civ. Proc. Code § 352 (b) (West 2015).


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