One of the most important procedural rules governing birth injury lawsuits is the statute of limitations. Each state provides its own statutes of limitations for various types of claims. A statute of limitations imposes a deadline for filing a lawsuit. This rule is designed to ensure that claims are brought and heard while physical evidence remains available and the memories of witnesses remain fresh. A court may dismiss any claim filed after the statute of limitations has expired, even if it has a strong substantive basis.
A defendant generally must raise a violation of the statute of limitations as a defense, rather than expecting a court to dismiss a lawsuit automatically. If the defendant does not raise this defense, it is considered waived. Motions addressing procedural problems such as an alleged violation of a statute of limitations usually arise early in a case.
Suing a Hospital
Some hospitals are public entities operated by local, state, or federal governments. Separate, potentially much shorter time limits may apply to birth injury claims against these hospitals. For example, the New York City Health and Hospitals Corporation operates public hospitals and clinics in New York City. A 90-day notice of claim period applies to lawsuits suing its hospitals for birth injuries.
The Discovery Rule
The statute of limitations is generally designed to run from the time when an injury occurred. However, an injury may not appear immediately. A child who suffers from cerebral palsy due to birth trauma, for example, may not be diagnosed with this condition for months or years after birth. Many states account for situations involving non-obvious injuries by applying a discovery rule that may alter the time limit for bringing a claim.
The discovery rule provides a separate window that opens when an injury caused by medical malpractice is discovered or reasonably should be discovered. This rule often serves to extend the time limit for bringing a medical malpractice claim, but some states have used the principle to shorten the time limit. For example, California provides that a medical malpractice claim usually must be brought within three years of an injury or one year of discovery, whichever is sooner. Fortunately, this variation does not affect many birth injury cases, as discussed below.
Exceptions to Statutes of Limitations for Claims by Children
Distinctive statutes of limitations may apply to children bringing legal claims, due to their young age. In some states, a child below a certain age may be able to file a birth injury lawsuit until they reach a certain birthday, even if this is technically after the statute of limitations has expired. For example, a child in California who is under six years old can bring a claim within three years or at any time before their eighth birthday, whichever provides more time. A child in Texas who is under the age of 12 can file a claim until their 14th birthday.
Other states simply extend the statute of limitations in cases brought by children for a longer period than in ordinary medical malpractice cases. For example, a child in Illinois has eight years to bring a claim after a birth injury. In contrast, an adult victim of medical malpractice would need to bring a claim no more than two years after the injury was discovered, and no more than four years after the malpractice occurred.
Still other states start the statute of limitations period when a child reaches a certain age. For example, the five-year statute of limitations and the three-year discovery period in Maryland start running when a child turns 11. Considering the variety of approaches and the complexity of these rules, parents should consult an experienced birth injury attorney to find out about the precise restrictions that affect the timing of bringing a lawsuit.