Statute of Limitations

The statute of limitations is defined as the period of time in which a lawsuit may be filed. This is determined by state statute and most commonly is two years for medical malpractice lawsuits. This is shorter than for other types of tort litigation. The statute of limitations may be longer if other causes of action are claimed such as breach of contract, negligence from a negligent act (not malpractice), and intentional tort such as battery (intentional nonconsensual touching).

The issue is when does the statute of limitations begin? The statute of limitations usually begins (accrues) when the incident occurred. This is usually true of intentional torts such as battery, because it is easy to determine when the battery occurred. In medical malpractice cases it may be difficult to determine when the negligent incident occurred. Some states determine that the statute of limitations begins at the time the treatment was provided. Others use the “discovery rule” where the statute of limitations begins at the time the patient discovers or should have discovered the malpractice. The statute of limitations may be extended in the case of birth injuries and minors to the age of majority in some states. One needs to inquire about the specific requirements within a particular state's jurisdiction.