Statutes of Limitations in Medical Malpractice Cases

Published on Jun 16, 2009 at 1:41 pm in General Blogs.

Every jurisdiction in the United States has established deadlines within which lawsuits must be filed for different types of causes of action. Maryland has a somewhat complicated method for determining when the statute of limitations “accrues” or begins and when it expires. Knowledge of these unique deadlines will make the difference between a viable cause of action and one that is barred by expiration of limitations, which is a devastating consequence of inaction.

Many understand that Maryland law allows three years from the date of the negligent act to bring a lawsuit. Onlythe filing of a lawsuit or a claim (depending upon the type of case) will “toll” or stop limitations from expiring. In medical malpractice cases, however, there is an additional period allowed under the applicable statutory enactment setting the limitations periods in this state. A medical malpractice claimant has the earlier of three years from the date he knew or should have known of the event of malpractice or five years from the date of malpractice without regard to knowledge of the act or omission or, in legal parlance, “discovery” of the allegedly wrongful act. Note that the operative term is “the earlier of.” For example, say a person is the victim of a wrongful act on June 1, 2006 but does not become aware of facts raising suspicion or giving rise to the need to inquire further about the possibility of a negligent act until July 1, 2006. Under the “discovery rule, that person would have three years from July 1, 2006 to file their claim. Under the typical non-medical malpractice statute of limitations, the claim would have expired on June 1, 2009. The discovery rule extended that deadline for one month and can extend the deadline for an additional two years in some cases.

“Discovery” of facts giving rise to the need to inquiry further about the possibility of a claim is sometimes a difficult event to pinpoint. This is where a lawyer’s advice will certainly help. Certain events clearly start the “discovery” limitations clock. For example, allegations or accusations that a mistake was made starts the clock. Consultation with an attorney about the possibility of claim starts the clock. Discussion amongst family members about the possibility of a mistake or a claim starts the clock. Belief in one’s own mind that a mistake may have been made starts the clock. Other events, however, are less certain. Courts apply a “reasonable person” standard in determining whether someone similarly situated would have either known or should have know of the need to further inquire or investigate the possibility that malpractice was committed.

Please contact the attorneys in the medical malpractice department at Belsky, Weinberg & Horowitz for further analysis of your claim. We will be happy to discuss when we believe the statute of limitations began to run and determine whether you have a legitimate claim.



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