One of the first questions that must be answered before expending the effort and money to properly evaluate whether a potential medical malpractice claim exists is the question of whether the claim is beyond the statute of limitations. The statute of limitations is called the prescriptive period. If a case is prescribed, it is beyond the statute of limitations.
A person has one year from the date they either knew, or should have known of the potential malpractice in which to bring a claim. If a claim is not instituted within this time period, it is barred by prescription.
This is a very short time period to bring claims and does not account for the situation where a person does not know and did not suspect malpractice within a year of the event. The legislature has attempted to address this situation by allowing a claim to be brought within three years of the date of the malpractice only when the malpractice was not known and should not have been known by the patient. Thus, when a patient learns for the first time that a sponge was left in them two years ago, they are allowed to bring a claim.
However, if the sponge is not discovered until more than three years from the date it was left in the patient, the claim is barred even though the patient did not know about it. This is a harsh law designed to insulate health care providers from any claim being brought after three years.
Most jurisdictions will make exceptions for certain types of malpractice, like retained foreign objects like sponges. Generally, those jurisdictions will allow a claim to be brought within a certain period after discovery of the foreign object. This is true even if the object is not discovered for many years later. Unfortunately, has no such rule and requires states that in no event can a claim ever be made after three years from the date of the alleged malpractice. This strict law is known as a statute of repose.
It also prohibits claims from being brought after one year from the date of the malpractice where the patient "should have known" of the medical malpractice. Unfortunately, whether a patient should have known or suspected malpractice earlier is a question the judge or jury will answer. If it is answered in the affirmative, then even a valid claim will be dismissed.
For these reasons, it is important to determine at the beginning of the review whether there is a potential problem with prescription.
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