This is a very important question regarding medical malpractice claims. It is very important to know all the possible deadlines in a medical malpractice claim.
However, knowing this is clearly not enough. You must also know precisely when the deadline begins to run.
Date of Incident
Deadlines can be hard to meet in personal injury cases because many times the patient may not realize there is anything wrong until some time has passed. In most personal injury cases, medical malpractice included, the deadlines begin to run on the date of the incident or the date of the alleged negligence. This date would start the running of the statute of limitations for you claim. In claims against the government, it would start the deadlines under the New Mexico Tort Claims Act. Specifically, it would start the requirement of the 90 day deadline on the Tort Claims Notice, which comes very quickly.
In medical malpractice claims, this can be a problem. The injured patient may not even know that there has been medical negligence for weeks, months and even years. There are numerous ways this might come up.
One good example to illustrate the problem, and what is unfortunately not all that uncommon, is the situation where surgical instruments or supplies have been left in the patient. In this case, the patient may have nagging problems for weeks, months or years. The patient may complain incessantly to the doctor about pain or other symptoms. The doctor may chalk it up to recovery. In some cases, the doctor may even blame the victim saying the victim is overly sensitive to pain, the patient did not properly rehab, the patient has engaged in other behavior that is causing the problems or worse.
This is not just an example. It is an actual case. This may and did go on for over 5 years. Rather than listening to the patient, the doctors blamed the patient with some pretty atrocious allegations. And rather than accepting the possibility that the patient might be actually suffering, the doctors refused to order a simple CT scan for over 5 years. When finally the CT scan was ordered, it was found that surgical supplies had been left in the patient and had been causing all of the problems which by that point had become quite unbearable.
Date of Discovery Under the “Discovery Rule”
In some cases the deadlines can be set from the date of the injuries or negligence being discovered, which is set by the “Discovery Rule” So when do the deadlines begin to run in a case like this? Certainly, it would be unfair to have it run from the date of incident. In some, but not all of these cases, the deadline would run from the date of the discovery of the negligence under the “Discovery Rule.”
As noted, the Discovery Rule does not apply to all cases. The New Mexico Medical Malpractice Act provides extensive protections for doctors who qualify under the Act. One such protection is the inapplicability of the Discovery Rule for Qualified Healthcare Providers as defined under the Act. As a result, even in the most egregious of circumstances as set forth above, a Qualified Healthcare Provider is not subject to the Discovery Rule. Instead, the statute of limitations would run from the date of the alleged negligent act (i.e. leaving the supplies in the surgical site).
Ongoing Acts of Medical Negligence
The statute of limitations is set from the date of the negligence. If the doctor is still acting negligently you may have an opportunity to file your claim. However, it is important to understand that there may be ongoing acts of negligence against the original doctor or subsequent doctors for failure to diagnose that are within the statute of limitations. Each new act of negligence has its own statute of limitations. So even if you think this might be your situation, it is worth having a lawyer take a look at it.
Do Not Delay!
In sum, the deadlines begin to run either on the date of the alleged negligence or in some cases, the date of discovery of the negligence. Which start date applies can be determinative of whether you may still file a claim. No matter which start date applies, it is important that you contact an attorney experienced in medical malpractice as soon as you suspect that you have been harmed by medical negligence. Delay under any of the possible scenarios is never a good idea.