Don’t “Wait and See” With Your Medical Malpractice Case
It’s a story I hear on an almost weekly basis. “After the surgery, I knew something was wrong but Dr. X told me to ‘wait a year and see what happens.’” From a legal standpoint, this is terrible advice when dealing with a potential medical malpractice claim in California.
What’s wrong with waiting a year? The Statute of Limitations.
A statute of limitations is a law which places a time limit on pursuing a legal remedy in relation to wrongful conduct. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.
Simply put, barring a particular exception, if you don’t file your lawsuit in time, you will be forever barred from bringing your action.
In California, medical malpractice claims are governed by Code of Civil Procedure Section 340.5. It states that medical malpractice actions must be commenced within 1 year from the date of the injury, or one year from the date the plaintiff discovers, or reasonably should have discovered the injury, whichever occurs first. It also states that, absent a specific exception, “In no event shall the time for commencement of legal action exceed three years.”
There are three enumerated exceptions to the general rule. These are:
- Proof of fraud
- Intentional concealment
- The presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.
Unless you meet one of these exceptions, or unless you are a minor, you essentially have one year to bring your action.
The periods of limitation for medical malpractice apply to minors six years of age and older. For medical malpractice actions involving minors below the age of six, the action must be filed within three years of the date of the injury or before the minor’s eighth birthday, whichever period is greater.
Lastly, if your claim is against a public entity, you are required to bring a public entity claim within six months.
With all of this in mind, hopefully, is it clear why it would be an extremely unwise decision to “wait a year and see what happens.” Courts are very strict in enforcing statutes of limitations. Even the most meritorious case could be summarily dismissed if not brought within the appropriate time period.
If you or a loved one has been injured due to medical malpractice, or suspects that they may have been the victim of malpractice DO NOT DELAY! You should contact a medical malpractice attorney immediately to have your case evaluated. Furthermore, because the evaluation of medical malpractice cases can take some time, you may find it increasingly difficult to find an attorney willing to take your case as the limitations period approaches.