Statute of Limitations on Personal Injury Cases Involving Children

The statute of limitations on New Mexico personal injury cases involving children is quite a bit different than for adults.  They also differ depending upon the nature of the defendant and the nature of the case.

The rules can be pretty confusing, so if you are unclear on the statute of limitations for your child’s personal injury case it is extremely important to seek the guidance of an attorney.  Missing the statute of limitations will bar your child’s claim completely.

General Rule for Personal Injury Cases Against Private Individuals or Private Entities 

The standard statute of limitations for personal injury claims against private individuals or private entities is 3 years.  For children, the statute of limitations is extended to varying degrees depending upon the nature of the defendant.

For most private defendants, the statute of limitations runs when the child turns 19.  There are much shorter deadlines in medical malpractice cases involving qualified healthcare providers which will be discussed below.

In most personal injury cases against private defendants, under New Mexico law (NM Stat §31-1-10), a child has until his or her 19th birthday to file a personal injury lawsuit.  Presumably, this extension of the deadline is to allow a child to file on his or her own in the event that a parent fails to do so.

Of course, it is highly advisable to file much sooner so if the parent will not file for whatever reason, the child can seek the appointment of a guardian ad litem for the purposes of initiating the lawsuit if the child cannot obtain legal representation on his or her own.

Claims Against the Government 

As is always the case, the statute of limitations is shortened in cases involving governmental defendants.  This would include any government-operated entity, facility, hospital and so on.  It would also include suits against governmental employees.

Typically, the statute of limitations on suits against the government is 2 years.  The statute is extended for cases involving children.  However, it is not extended to the same degree as in cases involving private defendants as discussed above.

In personal injury cases involving child victims against governmental entities, the statute of limitations is extended to the child’s 9th birthday by NM Statute 41-4-15(A) which reads:

“Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death, except that a minor under the full age of seven years shall have until his ninth birthday in which to file. This subsection applies to all persons regardless of minority or other legal disability.”

The statute is somewhat confusing. Specifically, it applies to children and other legal disabilities.  Moreover, a child of 7 is facing the same 2-year statute of limitations as an adult.

This provides some relief but seems completely arbitrary with no real protection for the child but is instead simply a tool to shield the government from suits.  There is a New Mexico Court of Appeals case from 2007 (Jaramillo v. Heaton) that found this limitation to violate a minor’s due process rights.  However, this case should be relied upon only as a last recourse in the event that you have missed the deadline set forth in the Act. It is far better to get the suit filed before the 9th birthday so you are not faced with challenging the constitutionality of the Act.

Medical Malpractice Claims Have Special Rules

The statute of limitation in medical malpractice cases depends upon whether the defendant is a governmental provider, a qualified healthcare provider or medical provider that falls in neither of these categories.

In medical malpractice cases against the government, the rules above apply.  The rules involving qualified healthcare providers are similar to the rules in cases against the government.

In cases involving qualified healthcare providers, the child has until his or her 9th birthday under the New Mexico Medical Malpractice Act at NM Stat § 41-5-13.  The language is very similar to the language in the Tort Claims Act for suits against the government.  The language in relevant part states:  “a minor under the full age of six years shall have until his ninth birthday in which to file”.

As you can see, like the rules in government claims, a 6-year-old child will be held to the 3-year statute of limitations like any adult, again, with the deadline being the child’s 9th birthday.

And again, this rule makes absolutely no sense for the protection of children.  It is simply a way to shield doctors from responsibility for their negligence.  After all, can a 9-year-old child really be expected to understand the statute of limitations and file the lawsuit on time?  Under the Medical Malpractice Act, apparently this is the expectation.

In Conclusion 

To sum it up, the statute of limitations for personal injury cases involving children can be quite confusing.  It is very important to understand and meet these deadlines.  Missing them will bar the claims completely.

To be on the safe side, as with any personal injury claim, start early.  These cases, especially medical malpractice cases, can be very complicated requiring months for an attorney to even evaluate. Waiting to the last minute is not an option.

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