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WHAT IS THE STATUTE OF LIMITATIONS ?
The statute of limitations is a time limit set by law which creates a deadline for filing a lawsuit. If you file your suit after the deadline the suit will be thrown out. Each state has its own special requirements and some states allow extensions or have exceptions to their time limits. Although each state differs, these malpractice statutes of limitations may be as short as six months or as long as four years or more. Some states (BUT NOT FLORIDA!) will postpone the running of the statute of limitations for an injured child until the child reaches a certain age.
If you think you may have a claim for medical malpractice you should contact a malpractice lawyer in your state as soon as possible to learn the precise deadline in your state. There may be a great deal of work to do to prepare your case before it can be filed. Some malpractice lawyers will not even agree to investigate a potential case unless there are several months remaining on the statute of limitations. Another benefit to starting the claim as soon as possible is that sometimes there are important records that can be obtained before they are destroyed or reduced to microfilm. The prompt collection of evidence may make a big difference in successfully proving your case. It is far easier to prove a medical record has been altered if you have access to the original rather than a microfilm copy.
In Florida the statute of limitations for medical malpractice is two years from when the patient (or sometimes a particular family member or guardian) either knows, or should know with the exercise of reasonable diligence, that the injury has occurred and there is a reasonable possibility that the injury was caused by medical malpractice. Florida also has a very harsh rule that goes along with it called the statute of repose. This rule says that unless there is fraud, concealment, or misrepresentation, under no circumstances may a healthcare provider be sued for medical malpractice more than four years after the actual incident of malpractice. So even if the patient or family does not know about the malpractice, they may not bring the claim more than four years after the malpractice occurs under most circumstances. In 1996 Florida adopted for the first time a special statute of repose for children. For incidents of medical malpractice which occur on or after July 1, 1996, the four year statute of repose cannot act to cut off a child's malpractice claim prior to the child's eighth birthday. Keep in mind, however, that the two year statute of limitations can still cut off the claim well prior to that if the parents or guardian of the child either know, or with the exercise of reasonable care should have known, of the injury to the child and the reasonable possibility that it was caused by malpractice. In other words, while the statute of repose was extended for certain children, there was no similar extension for the statute of limitations, and either one may cut off your claim if you don't file it soon enough. If the case is going to involve a State agency as a defendant, or a Veterans Administration Hospital or Clinic, there are special advance notice requirements that must be strictly followed.
The bottom line on the statute of limitations/statute of repose issue is that they can be tricky, and there are a few exceptions. We have said it many times throughout this site: If you think you might want to pursue a claim, contact a medical malpractice lawyer without delay.
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Not All Who Wander Are Lost. J. R. R. Tolkein
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10-07-2002, 12:52 PM
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