Medical Malpractice Statute of Limitations: 2 Frequently Overlooked Items

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Most civil claims are governed by statute of limitations laws, which limit the amount of time a plaintiff has to file a lawsuit against another party. Under a standard statute of limitations deadline, the victim of medical malpractice has a certain number of years (typically 2-6, depending on the state) to file a suit. If the plaintiff does not file a lawsuit within this deadline, they lose the right to sue for medical malpractice relating to the incident in question. There are, however, a few exceptions to this rule that are often overlooked by healthcare providers.

The Discovery Rule

The Discovery Rule is used to extend the reporting time in instances when the injury is not immediately known. If, for example, a surgeon forgets to remove a sponge after a surgery, the patient may not know immediately why they are suffering from certain symptoms. Or, if a doctor did not promptly diagnose a condition like cancer, the patient may not realize the misdiagnosis for many years. The statute of limitations “clock” does not begin, then, until the patient discovers or reasonably should discover the injury.

The Minor Rule

The Minor Rule is used to extend the reporting time for cases involving children. In most states, the statute of limitations “clock” does not start until the minor child turns 18. In these instances, minors or their parents or legal guardians have an extended period of time in which they can bring a suit against the healthcare provider.

Malpractice Tail Insurance Considerations

Statute of limitations questions often arise when a medical provider is about to buy tail insurance. It can be tempting to consider buying a limited tail or possibly waiving tail insurance altogether when you see the price tag. Tail insurance can be limited or unlimited. It could be a 1-year tail (giving you only 1 additional year of coverage), 2 years, 3 years, 10 years, or an unlimited tail. Rates will be different depending on the length and amount of coverage.

Don't make the mistake of assuming you have no risk because the "clock has run out". Talk to your medical malpractice agent to find out how the discovery rule and the minor rule may affect your long-term professional liability risk.