How long do I have to file a medical malpractice claim?

How long do I have to file a medical malpractice claim?
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In medical malpractice cases, there are a number of important deadlines. One of them is called the statute of limitations, which sets out the last day you can file a claim if you or a loved one has been injured by medical malpractice.

Because you have limited time to file a claim, you should visit a law firm as soon as possible after you know or even suspect that you may have a medical malpractice claim. A medical malpractice attorney can answer the questions you have about your medical malpractice case and help you understand how the statute of limitations applies to your situation.

What Is Medical Malpractice?

Medical malpractice is when a healthcare worker or provider does not provide medical care that is up to the established standards of care. Malpractice frequently appears as a misdiagnosis or delayed diagnosis, surgical error, birth injury, or improper treatment. A doctor, nurse, hospital, pharmacist, or any other licensed healthcare entity’s mistakes or inaction causes the patient to be injured or makes an existing illness worse. Patients may have to deal with the long-term consequences of medical malpractice or may even pass away from an injury or disease.

Medical mistakes cause roughly 250,000 deaths annually. Many more people face serious injuries. On top of dealing with the physical effects of malpractice, these patients may also rack up hundreds to thousands of dollars in medical bills for additional treatment. Medical malpractice claims seek compensation for both the financial damage and physical/emotional suffering caused by medical negligence.

Schedule a consultation with a medical malpractice lawyer at Gruel Mills if you suspect you or a loved one was injured due to a doctor’s negligence. We can help determine if you have a case that is worth pursuing. If you do, we take on the workload and ensure you do not miss the statute of limitations so you can focus on your recovery.

Why Do States Have a Statute of Limitations?

How long do I have to file a medical malpractice claim?

Every state has a law setting up time limits for filing personal injury lawsuits. These time limits are often different for medical malpractice suits than for other types of personal injuries. Once the statute of limitation on medical malpractice passes, the defendant can have the court dismiss the claim, and the victim will never be able to bring it again. Therefore, you should contact an experienced attorney at Gruel Mills to make sure you understand how long you have to file your claim.

The purpose of a statute of limitations is to protect defendants from unfair legal action. If it has been many years since the malpractice occurred, it is likely that evidence can be lost or degraded, people will have forgotten what they did, and it may be impossible to recreate the incident enough to determine whether the doctor was negligent or not. The statute of limitations protects a doctor or hospital from having to defend themselves when they cannot get the evidence they need to do so.

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What Is the Statute of Limitation for Medical Malpractice?

The statute of limitations for medical malpractice lawsuits in Michigan is two years, starting on the date the malpractice occurred. This deadline is not the same in every state.

State laws usually have a separate deadline for medical malpractice incidents involving the victim’s death. In Michigan, the two-year statute of limitations does not start to run until a personal representative is appointed by the court to represent the patient who died.

In either case, keep in mind that you must submit a notice to the doctor, hospital, or other medical worker or entity before the statute of limitations ends. This means you cannot wait until a year and eleven months have passed before starting the process of pursuing a lawsuit. Any good medical malpractice attorney will also need a number of months to gather records and have experts review your case before the notice or complaint can even be filed. Thus, you should contact an attorney as soon as you suspect a medical malpractice-related injury. This will allow your attorney to build the most successful case on your behalf before time runs out.

Exceptions to the Statute of Limitations

The Discovery Rule

Many states, including Michigan, allow claimants to “toll” or extend the statute of limitations for a brief period due to various circumstances. The discovery rule often applies to medical malpractice claims. Harm from a doctor’s carelessness is not always noticeable at first, so you may not realize that malpractice occurred until you experience symptoms many months or even years later. The law pauses the deadline until the injured party discovers or reasonably should have discovered their injuries.

The Victim Is Under 18

Another exception to the statute of limitations applies when the injured party is under 18 years old. The law generally gives the child until their 19th birthday to bring any personal injury claim. However, in medical malpractice cases there are a few different limitations. If the child was under 8 years old when they experienced the malpractice, such as a birth injury, they have until their 10th birthday to file a claim. If the child experiences damage to their reproductive system prior to turning 13 years old, they have until their 15th birthday to file the claim. This tolling is complex, but your lawyer can help you identify the correct statute of limitations for your case.

The Doctor or Hospital Acts Fraudulently

A third possible exception to the statute of limitations applies if the defendant or its employees do anything fraudulent to cover up their malpractice and keep you from finding out that you have a claim. This type of tolling is rare and very difficult to prove, but it may be the only option if the defendant’s actions kept you from finding out about the malpractice for several years.

Talk to your lawyer if you are unsure whether you can toll the statute of limitations for your case.

The Statute of Repose on Medical Malpractice

A statute of repose is similar to a statute of limitations in that it provides a time limit for medical malpractice claims, but it is the ultimate or final deadline. No late discovery of the injury or tolling can help if the statute of repose has already expired. In Michigan, the statute of repose is six years. If it has been more than six years since a licensed medical provider committed malpractice, they can no longer be sued for their negligence. To avoid missing this ultimate deadline, contact a medical malpractice attorney immediately.

How to Start a Medical Malpractice Lawsuit?

Medical malpractice law is complex, so having an experienced attorney on your side is incredibly beneficial. First, you must provide a notice to the potential defendants explaining your claim. If the medical facility is run by the government, there are additional notices that must be filed.  Your attorney knows how to meet these requirements and ensure your claim can go forward. Once the pre-lawsuit requirements are satisfied, there is a specific waiting period before you can file the complaint.

In many states, including Michigan, your medical malpractice complaint must be supported by an “affidavit of merit,” which is a statement by a medical professional that your doctor breached the standard of appropriate care. The person who writes this sworn statement must be the same type of doctor as the one who committed the malpractice.

The affidavit of merit shows the expert reviewed your case and found it has credibility. They may list all the medical records they reviewed and describe their reasoning. The expert will then explain the standard of care the liable doctor should have met. This document is submitted to the court along with your complaint, which describes the facts and the legal basis for your case.

Do You Have a Case if You Signed a Consent Form?

A medical procedure or treatment plan may require a patient to read and sign a consent form. These forms often indicate that the patient understands the possible risks and that the doctor explained all the options to the patient and communicated the information thoroughly. Through informed consent, the signature attests that an individual understands the benefits and drawbacks before proceeding. Many people think that they have waived their right to bring a medical malpractice claim if they signed such a form, but this is not correct.

It is important to know that a known risk of a treatment or procedure is different from medical malpractice. Acknowledging that surgery is not risk-free does not prevent you from seeking compensation if your doctor makes a negligent mistake during that surgery. For example, infection is a common risk of surgery, but a doctor who did not wash their hands before surgery or wear gloves would violate the standard of care. Obvious mistakes such as operating at the wrong level of the spine or cutting off blood supply to a healthy organ are not the type of risks that you agree to endure when you sign a consent form.

Speak with an attorney if you believe you suffered from a doctor’s negligence. You could have the right to compensation despite a signed consent form.

How Long Does a Medical Malpractice Lawsuit Take?

Your attorney will try to settle your claim before filing a lawsuit, but it may be necessary to file suit if the defendant is not interested in settlement negotiations or you are nearing the statute of limitations. Once the complaint is filed, there is a lengthy process where the parties exchange evidence, investigate the claims, file motions, and prepare for trial.

How long this process takes varies but often takes at least a year. There is a chance you could reach a settlement within a few months if the doctor’s liability is very clear. However, a contested case can take several years, particularly if you have to file or defend against any appeals.

A good medical malpractice attorney knows how to navigate the court system and the best ways to make a lawsuit proceed efficiently. Some delays are not within their control, but your best chance of getting a settlement promptly is to hire an experienced medical malpractice attorney.

The Factors in a Medical Malpractice Settlement

The national average recovery in medical malpractice cases is around $329,565. However, every case is different, and states handle damages differently. For example, Michigan does not permit punitive (punishing) damages and has a limit on the amount you can recover from pain and suffering. A  number of different factors will impact the value of a claim, including:

  • The type of malpractice. Some incidents of malpractice are worth more than others. For instance, the national average cancer-related case sees a settlement of $1.75 million, although this recovery is not likely in Michigan. A misdiagnosis for a non-life-threatening disease might have a payout in the thousands.
  • How significant the injury is. Severe injuries and illnesses result in extensive treatment plans. You will lose more wages while you recover and spend more money on medical care. Moreover, the pain and suffering may be worth more with serious injuries.
  • The strength of the evidence. Strong evidence increases the possibility of a favorable outcome with a substantial settlement. This evidence may be medical records, lab results, and testimony from expert witnesses.
  • The injured party’s age. The victim’s age can play a role in the potential settlement. Younger plaintiffs may have to live longer with the long-term effects. They could have more damages in lost income if they have debilitating injuries.

Each medical malpractice case is different. Your case could have other factors affecting the settlement. Your attorney will take all of the relevant factors into account when they determine what a fair settlement could be for your case.

Damage Caps in a Medical Malpractice Settlement

Damage caps limit how much money a person receives in a specific case. Medical malpractice lawsuits in Michigan have a maximum limit to non-economic damages, including pain and suffering. However, there is no limit on economic losses.

Should You Accept A Settlement Offer?

Scott R. Melton, Medical Malpractice claim Lawyer
Scott R. Melton, Medical Malpractice Claim Lawyer

The doctor or hospital may offer you a settlement early in the claims process. While getting the money quickly would be convenient, you should not accept any compensation until you get advice from a lawyer. The amount the defendant offers at an early stage is usually less than you could fairly recover and not enough to meet your needs for the rest of your recovery.

The opposing side may suggest a settlement before the extent of your injuries and damages is clear. In that case, you may not know how much medical care you will need in the future to recover from the malpractice. But once you accept a settlement, you will have to sign a “release” that prevents you from asking for more money later. If you discover more severe injuries in the future, you are out of luck. Therefore, you must consult your attorney if the defendant presents an offer. A personal injury attorney can help ensure the settlement will meet all your needs.