If you’re a regular reader of this blog, you may have noticed that many of our blog posts end with a statement along the lines of “You only have a limited time to file a claim, so don’t delay.” That’s not just something we say to generate a sense of urgency and drum up business. For almost all legal actions, including medical malpractice claims, there is a point in time after which you cannot pursue a case. This point is determined by the statute of limitations, and it’s important to understand what that is, and why it exists.
The statute of limitations is a law that sets the maximum period of time after an event (like an injury) that legal action can be taken against the person who caused the event. There are statutes of limitation in both criminal and civil cases, but we will be focusing on civil cases in this blog post: specifically, medical malpractice cases in Oregon and Washington. Statutes of limitation vary from state to state.
Why are there statutes of limitation? These laws exist to provide reasonable protection for defendants (people being sued). Defendants, as the name implies, have a right to defend themselves against claims in court. But over time, the evidence they might use in support of their defense could become “stale” or disappear.
Witnesses may forget events over time, or might move away or die, making it difficult or impossible to get their accurate testimony. Documents that could support the defendant’s case might be lost or destroyed. The statute of limitations exists to give the injured person (the plaintiff) a reasonable time to start a lawsuit, but not such a long time that the defendant’s opportunity for a defense is compromised.
Let’s imagine an especially serious case of medical malpractice: a 30 year old man goes into the hospital for a routine gallbladder removal. Unfortunately, the surgeon was intoxicated when she performed the surgery; she nicked an artery, causing the patient to bleed out and die. The patient had recently begun a lucrative career and was the sole support of his wife and three young children, who will now be deprived of his companionship and financial support.
In this case, all the elements of medical malpractice are present: the doctor owed a duty to the patient; she breached it by performing the surgery while impaired; her breach of duty harmed the patient and his family and led to damages. Any medical malpractice lawyer should be happy to take this case, and it should lead to a substantial financial recovery for the patient’s bereaved family.
But if the case is filed even one day after the statute of limitations expires, it doesn’t matter how strong the case, how capable the plaintiff’s attorney, or how terrible and shocking the injury. The surgeon’s defense attorney will ask that the case be dismissed, and the judge will comply with that request.
That’s why it is essential, if you even think you might have a claim, to consult an experienced medical malpractice attorney as soon as possible. It takes time to prepare and file a claim; if you wait until the last minute, you could run out of time.
Unfortunately, understanding the statute of limitations can be a complicated exercise. What the statute is and how it might apply in each case depends heavily on the facts of your case.
If medical malpractice leads to the death of a patient, survivors have three years in which to file suit. In most cases, a patient injured by medical malpractice in Oregon must file suit against the defendant within two years of the date that the medical malpractice took place. However, not all medical malpractice is immediately apparent (such as a case where a surgeon left a small sponge inside a patient after a surgery).
So, a medical malpractice suit must be filed within either two years of the date of the malpractice, OR within two years of the date when the patient should reasonably have discovered the malpractice. Where a minor is injured, the guardian has up to five years from the time of the injury to bring a claim, or two years from the date of the child’s 18th birthday.
However, in no case can a suit be filed more than five years after the date that the malpractice took place. Let’s go back to that scenario with the patient who had a sponge left in her body after surgery. Imagine that after four years of unexplained abdominal pain following surgery, a procedure revealed the presence of the sponge in her body. The patient has discovered, more than two years after the injury, that malpractice took place. Because of the “discovery rule,” she still has time to file a claim. However, because of the hard five-year limit, she only has one year to do so.
There are special rules for medical malpractice claims against Oregon Health & Science University (OSHU) and its clinics and health care providers, as well as any Oregon public hospital or clinic or employee of those facilities. Patients who have suffered injury and intend to file suit against a public entity or employee must file something called Tort Claim Notice within 180 days of the date the injury should reasonably have been discovered. If the victim is incapacitated (such as in a coma), the period for providing this notice is 270 days. Survivors of a patient killed by malpractice may have up to a year to file Tort Claim Notice.
If Tort Claim Notice is filed promptly, there is a two year statute of limitations to file a claim for both injury and death cases. You should be aware that there is no form for filing Tort Claim Notice; you must either research Oregon law to be sure your notice complies, or hire an attorney to prepare notice.
Washington’s statute of limitations is a little different from Oregon’s law. Washington medical malpractice victims, as a general rule, have to file their malpractice lawsuit within either three years of the date the malpractice took place, OR within one year of discovering the malpractice, whichever is later.
We can’t emphasize it enough: if you even think you might have a medical malpractice claim in Oregon or Washington, don’t hesitate to contact a lawyer. If you don’t have a worthwhile claim, you will learn that and be able to move on. If you do, you will be able to pursue your claim without worrying that your case will be dismissed due to the statute of limitations. We invite you to contact Huegli Fraser today to schedule a consultation.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
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