Wondering how long after surgery can you sue for malpractice? The answer varies depending on where the involved parties live and where the alleged misconduct occurred. Finally, each state has its own statute of limitations for medical malpractice claims.
5 Common Medical Malpractice Claims
First, let’s take a look at five types of frequently filed medical malpractice claims:
- Misdiagnosis. These claims result from getting the diagnosis wrong or missing the diagnosis entirely. Misdiagnosis frequently involves cancer and heart attack, the leading causes of death for American adults, according to the Centers for Disease Control.
- Failure to treat. Sometimes, physicians diagnose correctly but don’t provide treatment in light with the “standard of care”. This includes failing to order tests or make a referral and discharging prematurely.
- Surgical errors. An estimated 4,000 surgical errors occur each year in the United States, including operating on the wrong body part or patient, failing to remove sponges and other items, and lacerating or injuring tissues during robotic procedures.
- Medication errors. Another common claim involves mistakes in medication, including prescribing the wrong medication or dosage and missing interactions with other prescribed drugs.
- Birth injuries. These claims cover harm to the mother or child during pregnancy or delivery. Examples include failing to control the mother’s post-delivery excessive maternal blood loss or to monitor the baby’s pre- and post-delivery oxygen intake. Unintentional injury is one of the leading causes of infant death, according to the CDC. This form of medical malpractice also deals with wrongful birth (such as when parents would have avoided getting pregnant or terminated a pregnancy had they been aware of birth defects) and wrongful pregnancy (when efforts to avoid or end pregnancy is not successful). In some cases, parents can also sue for emotional pain and suffering that results from these harms.
Why Do People File Medical Malpractice Claims?
You can make a civil medical malpractice or liability claim against a healthcare provider whose negligent act or omission causes injury or death. In most cases, you must establish that:
- The provider-patient relationship existed at the time the alleged event
- The provider violated an accepted standard of care that resulted in the harm
- The injury is compensable with economic and non-economic damages
However, you must always file your claim before the statute of limitations for medical malpractice expires in your state. Once this crucial deadline passes, you cannot win a cash settlement even with a valid claim.
Can You Sue the VA for Medical Malpractice?
You can sue healthcare providers employed by the Veterans Affairs Administration for malpractice. The rules involving professionals who are federal contractors recently changed thanks to the case of Brian Talley, an Army vet whose original malpractice claim was denied because of the provider’s employment status and a statute of limitations issue. The Brian Tally VA Employment Transparency Act, signed into law in January 2021, requires the VA to advise veterans of “the importance of securing legal counsel” and to identify the employment status of all individuals involved in the case within 30 days of submitting a malpractice claim.
An Attorney Can Potentially Extend Your Statute of Limitations for Medical Malpractice Claims
If you think you have a case for medical malpractice, it’s vital to contact an attorney specializing in this area in your state as soon as possible. If you delay, you may lose your right to sue and potentially receive a cash settlement for the injury.
These cases are handled in state courts, which set deadlines — called statutes of limitations — for filing claims. Once you discover (or “should” have realized) that you may have been injured or adversely affected, the clock starts. However, experienced attorneys can also look for ways to “toll” these statues, which may give you more time to settle.
In Most Cases, the Statute of limitations for Medical Malpractice is Two Years
The statute of limitations for medical malpractice claims varies widely by state. In most cases, the deadline is two years. However, there are some medical malpractice statute of limitations exceptions that can work in your favor:
- Almost half of U.S. states have special provisions for cases involving foreign objects, such as sponges and other items.
- The majority of states extend the time limit for cases involving minors. This also applies to children who experienced birth injuries.
To make sure your case isn’t ruled out because the statute of limitations for medical malpractice has expired, always speak with an experienced medical malpractice attorney in your state to review your options.
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Margot Lester is the CEO of The Word Factory, a content marketing agency based in North Carolina that provides services for international healthcare brands, tech companies and SaaS developers. An award-winning business and brand journalist, she writes for daily and weekly newspapers and business journals, national magazines, in-flight publications and leading websites. Margot is also an in-demand writing coach and organizational communications trainer, helping individuals and teams write more effectively. LinkedIn: linkedin.com/in/margotlester.