Can You Sue For Medical Malpractice Discovered Years (Or Decades) Later?

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Medical issues can often seem like they come in clusters. You may go years without a major illness or injury, and then weather several in quick succession. If you've been under the care of a physician during this time, your multitude of medical problems can make it difficult to determine which issues are due to factors beyond anyone's control -- and which are due to your physician's negligent or reckless treatment. Do you have any options if you discover that your doctor has committed malpractice years (or even decades) after the fact? Read on to learn more about how statutes of limitations and dates of discovery can impact a medical malpractice claim.

What are the statutes of limitations for medical malpractice?

A statute of limitations is a type of time limit for filing a civil or criminal case. This prevents people from having the permanent threat of a lawsuit hanging over their heads for violating a minor law or doing something to incur liability for injury or property damage. Malpractice statutes of limitations are designed to help professionals (like doctors and lawyers) avoid being sued years or decades later for liability incurred in their professional capacity. If the time period prescribed by the statute of limitations has passed since the incident that gave rise to a claim, the person entitled to bring the claim is prevented from doing so, and the potential defendant can no longer be sued for this claim.

In most states, medical malpractice lawsuits must be filed within 2 to 4 years after the malpractice occurred. However, some states have modified these laws so that they comport more with the typical medical malpractice case -- including the time line on when an injury or ailment caused by malpractice may be discovered.

When does the clock start ticking? 

Some states have very strict medical malpractice statutes of limitations that allow no leeway if the malpractice isn't discovered for years. This can effectively prevent many victims from ever seeking recourse or financial restitution from the doctor who caused them harm, since malpractice is rarely an instant event.

However, the majority of states have more modified malpractice laws that don't allow the clock to start ticking until the victim discovers (or should have discovered) that malpractice occurred. For example, if your doctor ordered X-rays that revealed spots that were later discovered to be cancer, but took no action to biopsy or otherwise diagnose the spots at the time he or she observed them, the statute of limitations for this misdiagnosis may be calculated from the date of your cancer diagnosis (rather than the date the X-rays were initially taken). This extended statute of limitations can help give you time to organize your claim and present the best case possible against your physician, increasing your odds of a financial recovery that can help pay your medical expenses and compensate you for other costs.

What should you do if you suspect you've been the victim of malpractice but the statute of limitations has passed?

If you're still suffering pain or other health or quality-of-life ailments stemming from a doctor's act of malpractice that took place years ago, you may still be able to file a lawsuit. You'll want to consult with an experienced medical malpractice attorney in your area, as this attorney will be the most familiar with your state's laws and case law governing the time to file a malpractice claim. It's possible that even if the statute of limitations (including the extra discovery allowance) has expired per state law, there could be extenuating circumstances that may allow you extra time to bring a claim.