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Can You File A Medical Malpractice Claim Years After Surgery?
Ronnie Mills
Recovering from surgery can be tough, even under the best of circumstances. When you suffer a post-surgical complication due to a medical professional's mistake or oversight, you may be overwhelmed with the decisions facing you. How should you pay for the continued care or treatment required due to this mistake? Should you file a malpractice lawsuit? What can you do to increase your odds of a successful recovery? Read on to learn more about medical malpractice and the options available to you -- even if the injury occurred years ago.
What is medical malpractice?
Medical malpractice is the term used to refer to a civil claim against a doctor or other medical provider whose negligence or carelessness resulted in injury during a medical procedure. Malpractice can cover a variety of injuries -- from complications resulting from surgical tools left inside you after surgery to a severed vein or artery due to the surgeon's ill-timed tic. If your malpractice claim is successful, you'll likely be able to recover the medical costs associated with your extra treatment, as well as additional funds for lost wages or pain and suffering.
The medical malpractice lawyers are generally paid by contingency fee -- which means that consultations and other services are free unless you win the case. In this situation, the attorney will take a portion of your judgment or settlement to cover legal costs and other expenses.
Do you have any legal options if it has been years since the malpractice occurred?
Like other civil and most criminal cases, medical malpractice is covered by a statute of limitations that can vary by state. In general, most states will require that you file a malpractice claim within two or three years from the date of injury. Although the case may not settle within that time, filing before the statute of limitations has expired can ensure that your claim will remain active.
However, if your surgery took place more than a few years ago, you may still have some options. In many cases, this statute of limitations may not begin as soon as the injury occurs. For example, if the doctor mistakenly leaves an item inside you following a surgery, you might not have any immediate complications. You may first seek medical treatment a year or two later after suffering other seemingly unrelated symptoms. In this case, the statute of limitations would have been "tolled" (or paused) for the period of time during which you weren't aware of the injury.
Some states will even set out a separate statute of limitation for injuries not immediately discovered. For example, Alabama requires litigants to file within two years of the injury or within six months of discovering the injury, while California allows litigants to file within three years of the injury or within one year of discovery.
What if you were a minor when the surgery occurred?
If the person who suffered the injury was under age 18, a different set of rules apply. Many states allow parents to bring these legal actions on behalf of their minor children, but provide a more relaxed time frame for them to do so. For example, the District of Columbia has no statute of limitations for those under age 18 -- a child can suffer an injury at birth and file a malpractice claim just days before his or her 18th birthday.
In many cases, if your parents chose not to file a lawsuit within the minor statute of limitations, the normal statute of limitations will begin tolling at your 18th birthday. This can give you until age 20, 21 or even older to file a lawsuit for damages stemming from a surgery that occurred during your childhood.
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