For Victims of Medical Malpractice, Timing Matters

When it comes to filing a medical malpractice lawsuit, timing is critical. While the negative impact and costs associated with malpractice often persist for years or throughout a victim’s life, the opportunity to seek justice through the court system is limited by time. In legal parlance, the time period in which an individual may file a lawsuit is curtailed by what is termed the “statute of limitations.” Once that date has passed, suits are typically dismissed regardless of merit.

The statute of limitations for medical malpractice claims varies by state. It can be as short as one year or as long as up to six years. Generally speaking, in Massachusetts, injured patients have up to three years to start their lawsuit process. The same is true in New Hampshire, where medical malpractice lawsuits are subject to the laws governing personal injury.

But when does the clock start ticking? That can be a complicated question. Typically, it is the date on which the medical error occurred. However, in both Massachusetts and New Hampshire, there is something called the “discovery rule.” Simply put, if a patient was not or could not have been aware that the medical care they received might have caused their harm, the clock starts running as of the date the patient discovered that the medical care was the cause of her harm. If an individual files a lawsuit based on the discovery rule, they must be able to demonstrate they did not know nor reasonably could have known of the medical error and/or that the medical error caused their harm prior to the date claimed as the date of discovery.

So, how could it be that an individual is not aware of harm done at the time of a procedure or other medical care? Not every error or the resulting harm is immediately apparent. For example, a child could sustain injury during labor or delivery and suffer a deprivation of oxygen, however the symptoms of a brain injury may not become evident until the child begins failing to meet their developmental milestones. In another instance, during the course of performing a colonoscopy a physician may miss the presence of a small mass in a patient’s colon and does not biopsy it. This error is not discovered until the patient begins having abdominal pain and blood in their stool three years later and undergoes a diagnostic work-up which reveals a large, malignant mass in the colon. The patient is diagnosed with Stage IV colon cancer. Given the advanced stage of the cancer at diagnosis, the patient discovers that the cancer may have been missed on the colonoscopy three years earlier. These are only a few of the scenarios when the error or the resulting harm may not be discovered at the time incurred.

In some states such as Massachusetts, medical malpractice lawsuits are also subject to a “statute of repose,” which means regardless of the date of discovery, a lawsuit must be filed within seven years from the date the medical error occurred. The only exception is for cases involving retained foreign objects, such as sponges or surgical instruments, unintentionally left inside a patient during a procedure or surgery.

Medical malpractice lawsuits are complex and nuanced. They require an understanding of the specific procedural requirements as well as extensive investigation, evaluation and preparation including meticulous medical record reviews, research, and securing qualified medical experts to support the claim. The process needs to start well before the statute of limitations deadline.

One point to note: the statute of limitations only applies to the initiation of a lawsuit. Once filed, there is no limit on the time it may take to ultimately resolve the case – another reason to start as soon as possible. If you think you may have a medical malpractice case, it is important you consult an experienced attorney knowledgeable of your state’s laws. If you are in New Hampshire or Massachusetts, we can help. Contact us.