Statute of Limitations: Medical Malpractice Lawsuit (Pennsylvania)

The Pennsylvania statute of limitations for civil cases ranges from one to four years, depending on the situation.

According to Chapter 52 Section 2544 of the Judicial Procedure of Pennsylvania, the injured party has two years from the discovery of the injury or the time that you should have reasonably discovered it to file a lawsuit.

While the clock does not technically start until you discover the injuries, the time to discover your injury does not extend indefinitely. The Medical Care Availability and Reduction of Error Legislation(MCARE) sets a seven-year maximum for filing a claim regardless of when your injury is discovered.  This is known as the statute of repose, and while it applies to most cases, it offers two exceptions:

1. There is no time limitation if an item, such as a sponge or tool, is left in the body during a surgical procedure.
2. If negligence occurs while providing care to a minor, the two-year limitation does not begin until the child is 18, allowing them to file a claim until the age of 20.

Another provision applies when a case involves a minor. If the child’s parents have already pursued or received a claim on their behalf, the child cannot pursue a separate claim as an adult.

Discovery

The legal premise of ‘discovering’ the injury does not mean you have a complete medical understanding of what went wrong. This simply refers to the date you discovered an issue with previous medical care that resulted in current complications or injuries.  The caveat of the statute of limitations onset of when you discover the injury is in the interest of fairness to those who may not have immediately evident injuries.

However, the language of when you should become ‘reasonably aware’ may be left to interpretation and argument. Therefore, this is one of the most highly litigated components of a medical malpractice case that falls beyond the initial two years from the date of injury.

Wrongful Death

If your loved one has been killed by a negligent physician’s mistake, you may be eligible to seek a claim for wrongful death. Pennsylvania Code Chapter 83 Title 42 provides the right for specific individuals to claim a wrongful death action when a loved one is killed through negligence.

The statute of limitations for this action is also typically two years. However, like the statute of limitations for medical malpractice, additional factors may shorten or lengthen this time.

An Example of the Pennsylvania Medical Malpractice Statute of Limitations

Let’s walk through an example of how the statute of limitations might be applied in a hypothetical case.

Suppose you had a major heart surgery in 2010. You recover and continue with your life, only to have further heart complications some years later. During treatment for these complications, your doctor discovers your previous surgery did not solve the problem. Depending on the situation, this can continue in several ways.

Within Two Years

Say your second complication occurred 18 months after your initial surgery. In this case, it is likely to be a clearer situation that can be resolved with less pushback. Although you are within the two-year time limit, you may initially negotiate with the surgeon’s medical malpractice insurance company but then move to trial if the initial settlement offer isn’t satisfactory.

When you discover your injury within two years and immediately pursue legal action, it can decrease the opportunity for rebuttal. Your attorney can advise you based on the specifics of your case.

As a Minor

Suppose your 2010 surgery was done when you were 12 years old, and maybe the complication was discovered at 15, but your parents chose not to pursue legal action. Your statute of limitations to file a claim on your behalf would effectively start when you turn 18. You could take legal action for compensation until you are 20 years old, even though that would be five years following discovery and eight years following the actual malpractice.

Retained Materials

Another exemption from the standard statute of limitations, as well as the seven-year maximum by MCARE, is when an item is left in the body. The technical term for this is ‘retained surgical items’ or ‘retained instruments.’ However, if this is discovered at any point, you may be able to seek compensation for whatever injuries or complications it caused.

Between Two and Seven Years

Suppose you experience complications in 2014 and begin filing a claim or lawsuit in 2016. This may still be possible under the SOL if you discovered the injury in 2014 and would not have reasonably been expected to discover it prior to this complication. However, this may provide room for the opposing party to question whether you should have been able to discover the issue prior to the ending of the SOL, making the case more complicated, though not impossible.

It Is Critical to Start Early

Most physicians come to work every day intending to do right by their patients and give their best. Sometimes, they are overworked, overtired, or simply burned out and apathetic, which can cause life-changing, sometimes deadly mistakes. The broken trust from a medical error can have a lasting impact on your experience with other physicians or even your willingness to seek care down the road.

Negotiating with an insurance provider or hospital can take a significant amount of time. While it is not uncommon for medical malpractice lawsuits to settle instead of going to court, the insurance company will always aim to protect its assets and pay out as little as possible in compensation. This process may take additional months from the time allotted by the statute of limitations before you determine the best course of action is a lawsuit.

Call an Experienced Medical Malpractice Attorney Today

In many cases, we trust our physicians with our lives, and that is not a trust that should be taken lightly. Healthcare providers are held to a higher standard in their jobs, and our personal injury attorneys believe physicians should be held accountable when they are careless. If you have been injured by physician negligence, you deserve compensation for the additional costs and losses sustained from that mistake.

Call a medical malpractice attorney with Lopez McHugh PLLC today to discuss your case and determine when your statute of limitations started. The clock is ticking, so let us begin helping you today.