Dealing with the aftermath of a birth injury can be a traumatic experience for many parents. Unfortunately, many parents inadvertently lose the right to pursue medical malpractice actions due to the statute of limitations for their case. If your child recently suffered an injury at birth, it's important to understand how the statute of limitations can affect your birth injury claim.
Why You Can't Afford to Wait
Time is always of the essence when it comes to any medical malpractice claim. Many birth injuries can become difficult to diagnose with the passage of time, meaning that the longer you wait to make your birth injury claim, the less likely doctors will be able to accurately distinguish naturally occurring injuries from injuries potentially caused through malpractice. This could also lower your chances of being fairly compensated for your child's injuries.
The statute of limitations can also pose a problem if you wait too long to bring your claim forward. These statutes are commonly used to prevent plaintiffs from filing stale claims long after the evidence and facts of the case have either been lost or obscured with time. Filing your birth injury claim outside of prescribed statute of limitations could result in said claim being denied, along with any appeals made afterwards.
In a legal sense, the statute of limitations is a double-edged sword. It helps prevent fraudulent claims from reaching the courts, but it can also prevent genuine victims from recovering damages simply because they waited too long to make their claim.
Factors That Can Affect the Statute of Limitations
The statute of limitations on your birth injury claim can vary depending on your state of residence. For instance, most states give you a maximum of two years from the time of injury to file your birth injury claim. Others, like Maryland, give you five years from the time of injury. However, Maryland requires you to file your claim prior to your child's 11th birthday.
Another factor that can affect the statute of limitations is the discovery rule. According to this rule, the statute of limitations does not come into effect until the actual discovery of the injury in question. Because many birth injuries are not readily apparent until well after the date of the initial injury, the discovery rule helps plaintiffs avoid missing their window of opportunity to file a birth injury claim due to the late discovery of their child's injury.
What to Do If You Miss the Statute of Limitations
If you happen to miss the statute of limitations, don't panic. Depending on your state's statutes, there still may be a way to file your birth injury claim. In addition to the discovery rules imposed by some states, you may also benefit from certain tolls imposed on the statute of limitations. These tolls essentially freeze the time limit until your child reaches the age of majority, as evidenced by Section 208 of the New York Civil Practice Law and Rules.
Another option is for the child to file his or her own claim for medical expenses related to the injury up to the age of majority, depending on your state's statutes. This usually occurs when the parents' right to file a birth injury claim has expired.
If a judge decides to throw out your birth injury claim due to the statute of limitations, it may be possible to have your claim decided on appeal. If this is your case, then it's important to consult your birth injury lawyer as soon as possible. It may be necessary to gather as much evidence as possible that points toward filing the claim within the statute of limitations or the recent discovery of the injury in question, according to the discovery rules for your particular state.Share
3 February 2017
Ten years ago, I was injured in a car wreck while commuting to work. When a driver rear-ended my car, I hurt my back. Unfortunately, I had to undergo a couple of weeks of physical therapy. Even after receiving physical therapy, my back never felt as good as it did prior to the wreck. Have you been injured in a car wreck recently? Consider talking with an experienced accident and personal injury lawyer. This type of attorney can help you decide whether filing a lawsuit is your best course of action to take. On this blog, I hope you will discover the benefits of speaking with an accident and personal injury attorney soon after getting injured in a car wreck. Enjoy!