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How Long Do I Have to File a Medical Malpractice Claim?

This is a very important question in medical malpractice cases.  It actually raises a number of different questions and issues.

Government v. Private Medical Provider

First, there a few different deadlines that you might be facing depending on the type of medical provider that you believe acted negligently causing you harm.  The deadlines will depend on whether the medical provider is a governmental entity or a private entity.

Determining the type of entity (government or private) is extremely important because there are very short deadlines in claims against state, county and local governments.  It is not always clear what kind of entity it is so it is important to make this determination as quickly as possible.

Tort Claims Notice Requirement (ONLY 90 DAYS!) — Applies to Claims Against the Government

As stated, in claims against the state, county and local government, there is a very short first deadline.  This applies to all such claims including medical malpractice claims.  The first deadline is only 90 days.

Within 90 days of the negligent act that caused you harm, you must put the government on notice of a possible claim. This is done by mailing a Notice of Tort Claim (Tort Claims Notice) to the appropriate entity or entities.  Determining who to mail the notice to can be a bit of challenge in some cases.  So again, it is critical to get started.

Keep in mind that just because you mail a Tort Claims Notice to a medical provider does not mean you must sue them.  However, you must mail the Notice to protect your claim just in case.  Likewise, just because a lawyer sends a Notice for you, does not mean the lawyer necessarily believes it is strong case.  Nor does it mean the lawyer is committing to filing suit.  Instead, the lawyer may be simply sending the Notice as a courtesy.  In the alternative, the lawyer may send the Notice to protect the claim while he or she investigates further.

Statute of Limitations — Period Depends on Whether Governmental or Private Medical Provider

Tort Claims Notice deadlines are unique to claims against the government.    One deadline that applies to all personal injury claims, medical malpractice claims included, is the statute of limitations.  For personal injury claims, the statute of limitations is typically 3 years.  However, once again, there is a different rule for claims against the government.    For claims against the state, county and local government, the statute of limitations is only 2 years.

Now that you know the statute of limitations time limits, you should understand exactly what a statute of limitation is and what it does.  It is a deadline within which a lawsuit must be filed.  There are statutes of limitations for every kind of lawsuit.  Again, for personal injury cases, the deadline is typically 3 years (except in claims against the government).  If you do not file the lawsuit within the 3 year period (absent very rare and exceptional circumstances), you are barred from filing suit.  In other words, if you miss the statute of limitations, then you cannot bring a claim at all.

DO NOT DELAY!

There are a few other points to make.  First, there are different rules for claims against the federal government which will be addressed elsewhere.  Second, because failure to abide by the Tort Claims Notice rules and Statutes of limitations will bar your claim completely, you should not delay speaking with an attorney if you have been harmed as the result of medical negligence.  This is important in all personal injury cases.  It is particularly true in medical malpractice claims which can take well over a month, sometimes several, to evaluate the case due to the need for expert review of the file.

This brings us to the final point.  Many lawyers (including Collins & Collins, P.C.) will not take a claim on a short statute of limitations because of the time necessary to evaluate a medical malpractice claim.   So once again, if you have been harmed as a result of medical negligence, contact an attorney experienced in medical malpractice claims as soon as possible.  Missing a deadline, whether it is the Tort Claims Notice or the Statute of Limitations, will bar your claim completely.