How Long Do I Have To Sue A Doctor: Medical Malpractice and the Statute of Limitations
One of the most common questions the medical malpractice attorneys at Barrett, Fasig & Brooks get when called about a potential Tallahassee or North Florida medical malpractice case is about the statute of limitations. They want to know if it’s too late to sue the doctor or hospital that has caused them harm or how much time they have left.
Unfortunately, the answer is not a simple one. A great deal of information may be required to answer even that basic question. There are two ways in which the Florida legislature has seen fit to protect doctors and bar the legitimate medical malpractice suits of injured people based solely on the passage of time.
First, there is the STATUTE OF LIMITATIONS, which states that you have two years from the time that you first knew or reasonably should have known that you were injured as a result of malpractice, to bring suit.
Second, there is the STATUTE OF REPOSE, which states that no matter when you learned of the malpractice your claim must be filed within four years of when the malpractice actually occurred.
Both of these time limitations must be satisfied or your case will be barred.
For example, if you suffered a surgical error three years ago and you’ve known since the time it occurred that it was malpractice, your claim would be barred by the two year statute of limitations. That is because you knew about the error for more than two years, even though it has been less than four years since the malpractice occurred.
Conversely, if you only found out yesterday that you were misdiagnosed five years ago, your claim would also be barred, but for the opposite reason. Even though you had no idea about the injury until recently, and have known about it for far less than the two years required by the statute of limitations, since it’s been more than four years since the malpractice occurred, the statute of repose applied, and you will not be able to file a claim.
As if this scheme isn’t complicated enough, there are also a few specific exceptions:
- In cases of fraud, concealment, or intentional misrepresentation, the statute of repose is extended from four to seven years; the two year statute of limitations remains intact. Essentially, it only offers extra protection in cases where the fraud or concealment kept you from knowing about the malpractice, and therefore triggering the statute of limitations sooner.
Keep in mind, though, that this extension is very difficult to obtain. It does not apply when a doctor has not told you something or made an error in their records; they have to be actively egregiously lying, hiding, and manipulating to avoid discovery.
- There is also an exception to the statute of repose for children. The statute of repose will not cut off a child’s claim before the child turns eight years old. Again, the two year statute of limitations remains intact. If the child’s parent or legal guardian learns that the child has been malpracticed on, they only have two years to act on that knowledge, even if it will be many years before the child turns eight. However, this exception can provide valuable, additional time in cases involving developmental issues that can be difficult to spot.
Even when you understand these rules, it can be difficult to determine exactly when your time is up. Take again, for example, the case of a misdiagnosis. If you have repeatedly gone back to the doctor or hospital with the same complaints and repeatedly been (mis)diagnosed, when did the malpractice actually occur? And, if you’ve been hurting for months or years, how can you say exactly when you knew that you had been the victim of malpractice?
These can be difficult questions to answer. Given enough of the specific facts of your particular case, the experienced medical malpractice attorneys at Barrett, Fasig & Brooks will be able to help you understand your available options.
And finally, a caveat: If you know or suspect that you have been injured as result of malpractice it is VERY important for you to have your potential claim evaluated by the experienced attorneys at Barrett, Fasig & Brooks as quickly as possible. These claims can take months to investigate before a claim can be filed and the clock stopped. If you bring your potential claim to an attorney with only days or weeks left in your statute of limitations or repose, it makes it very difficult for them to give your case the attention that it needs before time runs out.
If you are struggling with knowing whether or not you have been a victim of medical malpractice in Tallahassee or North Florida, or whether you still have time left to make a claim, call the medical malpractice attorneys at Barrett, Fasig & Brooks today. We are here to help you navigate this complicated are of law and get you the justice that you deserve.