Medical Malpractice Lawsuits: 50-State Survey

Medical malpractice lawsuits are generally classified as personal injury cases. However, they tend to be more complex in both substance and procedure than claims based on car accidents or slip and falls, for example. This is partly because the nature of the claim is more technical and partly because many states have sought to limit the liability of health care providers.

The elements of a medical malpractice claim are described somewhat differently from state to state, but generally they involve:

A duty of care owed by the health care provider to the patient
A breach of the duty through some negligent act or omission
Causation leading from the breach to the patient’s injury
Damages resulting from the injury

Some states explicitly outline the elements of a claim by statute, while courts in other states have developed them through case law. One distinctive feature of medical malpractice cases, compared to other personal injury lawsuits, involves the standard of care. This is not simply what an ordinary, reasonable person would do under the circumstances. The standard of care is generally shaped by what a health care provider in the defendant’s field would do when treating a patient situated similarly to the plaintiff.

Since a jury likely would not know the specific standard of care for a health care provider, expert testimony is usually required in a medical malpractice case unless the mistake is obvious. In addition, over half the states impose a requirement that a plaintiff or their attorney submit an affidavit of merit when they file their lawsuit, or shortly afterward. This is meant to forestall frivolous claims by establishing that there is a legitimate basis for the lawsuit in the eyes of a qualified expert.

A plaintiff bringing a medical malpractice case must comply with a statute of limitations. This defines the time in which they can file their lawsuit. Statutes of limitations for medical malpractice cases are often distinct from those for other personal injury cases. Moreover, medical errors and the resulting harm may not be immediately obvious. As a result, many states implement a “discovery rule” for some or all malpractice cases. This may extend or adjust the statute of limitations if the plaintiff did not know (and could not reasonably have known) that they had a potential claim. However, even if a state has a discovery rule, a “statute of repose” may prevent a patient from bringing a lawsuit once a certain time has passed, regardless of whether they knew or reasonably should have known about the malpractice.

Deadlines for Injured Children

Many states impose separate statutes of limitations for children injured by medical malpractice, such as when birth injuries are caused by health care providers. These rules can be very complex and are not discussed in detail here.

Damages available for victims of medical malpractice usually include both economic and non-economic damages. Economic damages are financial forms of loss, such as medical bills, lost income, and costs of future treatment. Non-economic damages are intangible forms of loss, such as pain and suffering and lost enjoyment of life. In an effort to limit the financial exposure of health care providers, some states have imposed damages caps on medical malpractice lawsuits. These may limit the total award available or the amount of non-economic damages. Sometimes caps are higher, or even removed, when injuries are especially severe or the defendant engaged in egregious wrongdoing.

This survey of state laws on medical malpractice provides an overview of issues such as statutes of limitations, affidavits of merit, caps on compensatory damages, and elements of proof. However, not every nuance in the law is described here. You should consult a medical malpractice lawyer in your area if you are considering bringing a lawsuit.

Alabama

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: None

A plaintiff in an Alabama medical malpractice lawsuit must prove by substantial evidence that the defendant health care provider failed to exercise the same reasonable care, skill, and diligence that other similarly situated health care providers in the same general line of practice ordinarily exercise in a similar case. To carry this burden, the plaintiff must show the appropriate standard of care, the defendant’s deviation from that standard, and a proximate causal connection between the defendant’s act or omission and the injury.

The discovery rule in Alabama provides that a plaintiff may bring their claim within six months of discovery, or the discovery of facts that would reasonably lead to discovery, if the cause of action is not discovered and could not reasonably have been discovered within the two-year statute of limitations. However, a lawsuit generally may not be brought more than four years after the malpractice occurred.

Alaska

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: Generally $250,000 for non-economic damages ($400,000 in cases of wrongful death or severe permanent physical impairment that is more than 70 percent disabling); no cap in cases of reckless or intentional misconduct

A plaintiff in an Alaska medical malpractice lawsuit must prove a health care provider-patient relationship with the defendant and the degree of knowledge or skill possessed (or the degree of care ordinarily exercised under the circumstances) by health care providers in the field or specialty of the defendant. They also must show that the defendant lacked this degree of knowledge or skill (or failed to exercise this degree of care) and that they suffered injuries as a result that would not otherwise have been incurred.

The discovery rule in Alaska provides that the statute of limitations does not start running until the plaintiff discovers or reasonably should discover the existence of the elements supporting their claim. However, a lawsuit generally may not be brought more than 10 years after the malpractice occurred.

Arizona

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in an Arizona medical malpractice lawsuit must show that the defendant health care provider failed to exercise the degree of care, skill, and learning expected of a reasonable, prudent health care provider in the profession or class to which they belong within the state, acting in the same or similar circumstances. This failure also must have been a proximate cause of the injury.

The discovery rule in Arizona provides that the statute of limitations is paused until a reasonable person would be on notice to investigate the possibility of malpractice. Fraudulent concealment pauses the statute of limitations until the concealment is discovered or reasonably should be discovered.

A claimant in a medical malpractice lawsuit must certify in a written statement whether expert opinion testimony is necessary to prove the standard of care or liability. If the claimant certifies that expert opinion testimony is necessary, they must serve a preliminary expert opinion affidavit with the initial disclosures required by Rule 26.1 in the Arizona rules of civil procedure. The affidavit must provide the expert’s qualifications to express an opinion, the factual basis for each claim, the acts of the defendant that the expert considers to be a violation of the applicable standard of care, and the manner in which these acts caused or contributed to the damages.

Arkansas

Statute of limitations: 2 years
Affidavit of merit: Not required (ruled unconstitutional by Arkansas Supreme Court)
Damages cap: None

A plaintiff in an Arkansas medical malpractice lawsuit generally must use expert testimony to prove three key elements. They must use expert testimony from a medical provider in the same specialty as the defendant to show the standard of care, which is the degree of skill and learning possessed and used by members of the defendant’s profession in good standing who are engaged in the same type of practice or specialty in the defendant’s locality or a similar locality. They also must use an expert in the same specialty as the defendant to prove that the defendant failed to meet that standard. A qualified medical expert must testify that the patient suffered injuries as a proximate result of the negligence that would not have occurred otherwise.

Arkansas does not have a discovery rule in most medical malpractice cases. However, there is a discovery rule for cases involving a foreign object in a patient’s body, which provides that the statute of limitations does not start running until the foreign object is discovered or reasonably should be discovered. A continuous course of treatment by the health care provider or fraudulent concealment by the health care provider may extend the time limit in other cases.

California

Statute of limitations: 1 year after discovery or 3 years after injury, whichever is earlier
Affidavit of merit: Not required
Damages cap: $250,000 for non-economic damages

Professional negligence in the context of a California medical malpractice lawsuit means a negligent act or omission by a health care provider in the rendering of professional services, which proximately caused an injury or death. A health care provider must possess and exercise in diagnosis and treatment the reasonable degree of knowledge and skill that is ordinarily possessed and exercised by other members of their profession in similar circumstances.

The three-year statute of limitations in California is tolled when there is a foreign object inside the patient’s body, or when there is fraud or intentional concealment by the defendant. The one-year statute of limitations after discovery still applies in these cases.

Colorado

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: $1 million total; $300,000 for non-economic damages

A plaintiff in a Colorado medical malpractice lawsuit must show that they were injured because the defendant failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant. Unless the negligence involves subject matter within the common knowledge or experience of an ordinary person, the standard of care and the defendant’s failure to adhere to that standard must be established by expert testimony.

The discovery rule in Colorado provides that the statute of limitations does not start to run until both the injury and its cause are known or should be known by the exercise of reasonable diligence. However, a medical malpractice lawsuit generally cannot be brought more than three years after the act or omission giving rise to the action. Exceptions to these rules apply in cases of knowing concealment by the defendant or a foreign object left in the body of the patient. In these cases, the lawsuit must be brought within two years after the plaintiff discovered or should have discovered the malpractice. There is also an exception when both the physical injury and its cause are not known or could not have been known through reasonable diligence.

A plaintiff must file a certificate of review for each licensed health care provider named as a defendant within 60 days after serving the complaint. The certificate of review must be executed by the attorney for the plaintiff. It must state that the attorney has consulted a person who has expertise in the area of the alleged negligent conduct and that this professional has reviewed the known facts in the case and has concluded that the filing of the claim does not lack substantial justification.

Connecticut

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: Technically none, but court will review whether non-economic damages awarded by jury are excessive when greater than $1 million

A plaintiff in a Connecticut medical malpractice lawsuit must show a failure of a party rendering professional services to exercise the degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession, with the result of injury, loss, or damage to the recipient of the services. Meanwhile, a related statute defines the professional standard of care as the level of care, skill, and treatment that, in light of the relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

The discovery rule in Connecticut provides that the statute of limitations does not start to run until the injury is discovered or should be discovered in the exercise of reasonable care. However, a medical malpractice lawsuit generally cannot be brought more than three years after the malpractice occurred. Exceptions may apply in cases of fraudulent concealment, continuous treatment, or a continuing course of conduct.

The attorney or party filing a medical malpractice complaint must make a reasonable inquiry under the circumstances to determine that there are grounds for a good-faith belief that there has been malpractice. The complaint must contain a certificate of the attorney or plaintiff that this reasonable inquiry gave rise to a good-faith belief that grounds exist for an action against each named defendant. To show the existence of good faith, the plaintiff or their attorney must obtain a written and signed opinion of a similar health care provider, stating that there appears to be evidence of medical negligence. This must include a detailed basis for the formation of the opinion.

Delaware

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in a Delaware medical malpractice lawsuit must produce expert testimony that specifies the applicable standard of care, the alleged deviation from that standard, and the causal link between the deviation and the alleged injury. The standard of care is the medical standards followed by physicians in good standing in the community under similar circumstances.

The discovery rule in Delaware provides that a plaintiff may bring a lawsuit up to three years after the injury occurred if the injury was unknown to them and could not have been discovered in the exercise of reasonable diligence during the two-year statute of limitations.The statute of limitations may be tolled for up to 90 days if the plaintiff sends a notice of intent to investigate to the potential defendant.

A complaint in a medical malpractice lawsuit must be accompanied by an affidavit of merit as to each defendant, signed by an expert witness and accompanied by a current curriculum vitae of the witness. The affidavit must state that there are reasonable grounds to believe that the defendant has committed medical malpractice, meaning that the applicable standard of care was breached by the defendant and that the breach was a proximate cause of the injury.

Florida

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: None (except possibly in situations involving emergency services and care or Medicaid recipients)

A plaintiff in a Florida medical malpractice lawsuit must prove that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The standard of care is the level of care, skill, and treatment that, in light of the relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

The Florida statute of limitations does not start to run until the malpractice is discovered or should have been discovered with the exercise of due diligence. However, a medical malpractice lawsuit may not be brought more than four years after the malpractice occurred, or seven years in cases involving fraud, concealment, or intentional misrepresentation.

Before issuing a notification of intent to initiate medical malpractice litigation, a claimant must conduct an investigation to ascertain that there are reasonable grounds to believe that the defendant was negligent in their care and treatment, and this caused the injury. Corroboration of these reasonable grounds must be provided by a verified written opinion from a medical expert when the notice of intent to initiate litigation is mailed.

In addition, an attorney filing a medical malpractice lawsuit must make a reasonable investigation to determine that there are grounds for a good-faith belief that there has been negligence. The complaint or initial pleading must contain a certificate of counsel that this reasonable investigation gave rise to a good-faith belief that grounds exist for an action against the defendant. Good faith exists if the claimant or their attorney has received a written opinion of an expert that there appears to be evidence of medical negligence.

Georgia

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in a Georgia medical malpractice lawsuit must show the duty inherent in the doctor-patient relationship, the breach of that duty by failing to exercise the requisite degree of skill and care, and proximate causation leading from this failure to the injury. In general, a physician must have a reasonable degree of care and skill.

The Georgia statute of limitations starts running when the injury or death arising from the malpractice occurred. However, a lawsuit must not be brought more than five years after the malpractice occurred. There is an exception for cases involving a foreign object in a patient’s body, which must be brought within one year after the negligent act is discovered.

In a lawsuit against a licensed health care facility based on the action or inaction of a licensed health care professional, the plaintiff must file an affidavit of an expert competent to testify with the complaint. The affidavit must specifically describe at least one negligent act or omission by the defendant and the factual basis for each such claim.

Hawaii

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: $375,000 for non-economic damages based on pain and suffering

A plaintiff in a Hawaii medical malpractice lawsuit must prove a duty requiring the defendant to conform to a certain standard of conduct, a failure on the defendant’s part to conform to the standard, a reasonably close causal connection between the conduct and the injury, and actual loss or damage. The question of negligence must be decided by reference to relevant medical standards of care, which the plaintiff generally must prove through expert medical testimony.

The discovery rule in Hawaii provides that the statute of limitations starts to run when the plaintiff discovers the injury or should have discovered it through the use of reasonable diligence. However, a medical malpractice lawsuit may not be brought more than six years after the malpractice occurred, except in cases of fraudulent concealment.

Hawaii requires a patient to submit an inquiry to a medical inquiry and conciliation panel before a lawsuit based on the inquiry may be brought in state court. The filing with the panel generally must be accompanied by a certificate that declares that the patient or their attorney has consulted with a licensed physician who is knowledgeable or experienced in the same specialty as the potential defendant. The patient or their attorney must have concluded on the basis of the consultation that there is a reasonable and meritorious cause for filing the inquiry. If it is impossible to consult a physician in the same specialty as the potential defendant, the patient or their attorney may consult with a licensed physician in a specialty as closely related as practicable.

Idaho

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: $250,000 for non-economic damages, with annual adjustments based on state average annual wage

A plaintiff in an Idaho medical malpractice lawsuit must prove by direct expert testimony that the defendant negligently failed to meet the applicable standard of health care practice of the community, as the standard existed at that time and place and with respect to the class of health care provider to which the defendant belonged. A defendant must be judged in comparison with similarly trained and qualified providers of the same class in the same community, taking into account their training, experience, and fields of specialization. The community is defined as the geographical area ordinarily served by the licensed general hospital at or nearest to which the care was (or should have been) provided. The plaintiff also must prove that the defendant’s failure to use the appropriate care proximately caused their injury.

Idaho does not have a general discovery rule for medical malpractice cases. However, there is a limited discovery rule in cases involving a foreign object left in a patient’s body or fraudulent concealment. In these situations, an action may be brought within one year after the plaintiff knows or reasonably should have been put on inquiry, or two years after the malpractice occurred, whichever is later.

Illinois

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in an Illinois medical malpractice lawsuit must show the standard of care in the medical community by which the physician’s treatment was measured. They also must show that the physician deviated from the standard of care and that a resulting injury was proximately caused by the deviation from the standard of care. Under the standard of care, a defendant is held to the reasonable skill that a physician in good standing in the community would use in a similar case.

The discovery rule in Illinois provides that the statute of limitations does not start to run until the plaintiff knows about the injury or reasonably should know about it through the use of reasonable diligence. However, a medical malpractice lawsuit generally may not be brought more than four years after the malpractice occurred.

In any medical malpractice lawsuit, the plaintiff or their attorney must file an affidavit with the complaint. This generally must state that the plaintiff or the attorney has reviewed the facts of the case with a health professional, whom they reasonably believe to be knowledgeable in the relevant issues and who meets certain requirements. The reviewing health professional must have determined in a written report after reviewing the medical record and other relevant material that there is a reasonable and meritorious cause for the filing of the action. A copy of the written report, identifying the plaintiff and the reasons for the health professional’s determination that a reasonable and meritorious cause exists, must be attached to the affidavit.

Indiana

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: $1.8 million total

A plaintiff in an Indiana medical malpractice lawsuit must prove that the physician owed a duty to the plaintiff, the physician breached that duty, and the breach proximately caused the plaintiff’s injuries. A physician must exercise the degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which they belong, acting under the same or similar circumstances. Relevant factors include the locality, advances in the profession, availability of facilities, and whether the doctor is a specialist.

The Indiana statute of limitations for medical malpractice cases does not specifically integrate the discovery rule. However, Indiana courts have ruled that a plaintiff may bring their claim within two years of when they discover the malpractice and the resulting injury, or facts that should lead to the discovery of the malpractice and the injury in the exercise of reasonable diligence.

Iowa

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: $250,000 for non-economic damages (no cap in cases of actual malice)

A plaintiff in an Iowa medical malpractice lawsuit must show evidence that establishes the applicable standard of care, demonstrate that this standard has been violated, and develop a causal relationship between the violation and the alleged harm. The facilities, personnel, services, and equipment reasonably available to a physician are circumstances that may be relevant to the appropriateness of the care rendered by the physician to the patient.

The discovery rule in Iowa is integrated into the statute of limitations, which provides that the two-year period starts running when the claimant knows of the injury or death or should know of it through the use of reasonable diligence. However, a medical malpractice action may not be brought more than six years after the malpractice occurred, unless it involves a foreign object left in a patient’s body.

When expert testimony is necessary in a medical malpractice case, a plaintiff must serve a certificate of merit affidavit upon the defendant before discovery, and within 60 days of the answer to the complaint. The affidavit must be signed by an expert witness and contain their statement of familiarity with the applicable standard of care and a statement that the standard of care was breached by the defendant.

Kansas

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: None, except in wrongful death cases

A plaintiff in a Kansas medical malpractice lawsuit must establish that the health care provider owed the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury. The plaintiff also must show that the health care provider breached this duty or deviated from the applicable standard of care, the patient was injured, and the injury proximately resulted from the health care provider’s breach of the standard of care.

The Kansas statute of limitations starts running when the malpractice occurs unless the fact of injury is not reasonably ascertainable at that time. In that case, the statute of limitations starts running when the fact of injury becomes reasonably ascertainable. However, a lawsuit may not be brought more than four years after the malpractice occurred.

Kentucky

Statute of limitations: 1 year
Affidavit of merit: Required
Damages cap: None

A plaintiff in a Kentucky medical malpractice lawsuit must prove the same elements as a plaintiff in any other negligence action: duty, breach, causation, and injury. If a physician’s service falls below the expected level of care and skill, and this negligence proximately caused injury or death, all the elements of a malpractice action have been met.

The discovery rule in Kentucky is integrated into the statute of limitations, which provides that the one-year period starts running when the injury is discovered or should be discovered in the exercise of reasonable care. The statute also provides that a lawsuit must be brought within five years after the malpractice occurred, but the Kentucky Supreme Court has ruled that this provision is unconstitutional.

A claimant in a medical malpractice action must file a certificate of merit with the complaint. This generally is an affidavit or declaration that the claimant has reviewed the facts of the case and has consulted with at least one expert who is qualified to give expert testimony regarding the standard of care or negligence. The claimant or their attorney must reasonably believe that the expert is knowledgeable in the relevant issues. The expert must have concluded on the basis of review and consultation that there is a reasonable basis to bring the action.

Louisiana

Statute of limitations: 1 year
Affidavit of merit: Not required
Damages cap: $500,000 total plus interest and costs (excluding future medical care and related benefits)

A plaintiff in a Louisiana medical malpractice lawsuit must prove the degree of knowledge or skill possessed, or the degree of care ordinarily exercised, by physicians licensed to practice in Louisiana and actively practicing in a similar community and under similar circumstances. (If the defendant practices in a certain specialty, and the alleged acts of malpractice raise issues peculiar to that specialty, the plaintiff must prove the degree of care ordinarily practiced by physicians in that specialty.) In addition, the plaintiff must prove that the defendant lacked this degree of knowledge or skill, or failed to use reasonable care and diligence, along with their best judgment in the application of that skill. Finally, the plaintiff must prove that they suffered injuries that would not have been incurred otherwise as a proximate result of the lack of knowledge or skill, or the failure to exercise reasonable care.

The discovery rule in Louisiana is integrated into the statute of limitations, which provides that the one-year period starts running upon the discovery of the malpractice. However, even for claims based on the discovery rule, no lawsuit may be filed more than three years after the malpractice occurred. Fraudulent concealment or a continuing course of treatment may pause the clock.

Maine

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: None, except in wrongful death cases

Generally, a plaintiff in a Maine medical malpractice lawsuit must provide expert medical testimony establishing the appropriate standard of medical care, showing that the defendant departed from that recognized standard, and showing that the conduct in violation of that standard was the proximate cause of the plaintiff’s injury. A physician should be held to the standard of care of an ordinarily competent physician under similar conditions.

The discovery rule does not apply to most medical malpractice lawsuits in Maine. The statute of limitations specifies that the three-year period starts running when the malpractice occurs. However, the discovery rule applies in cases involving a foreign object left in a patient’s body. In these cases, the three-year period starts running when the plaintiff discovers or reasonably should have discovered the harm.

Maryland

Statute of limitations: 3 years after discovery or 5 years after injury, whichever is earlier
Affidavit of merit: Required
Damages cap: $650,000 for non-economic damages, increased by $15,000 per year starting in 2009

A plaintiff in a Maryland medical malpractice lawsuit must demonstrate that the defendant had a duty to protect the plaintiff from injury, the defendant breached that duty, the plaintiff suffered an actual injury or loss, and the loss or injury proximately resulted from the defendant’s breach of the duty. Recovery for malpractice is allowed only when there is a relationship between the doctor and the patient. The standard of care is defined as the standards of practice among members of the same health care profession with similar training and experience, situated in the same or similar communities, at the time of the alleged malpractice.

The five-year statute of limitations in Maryland runs without regard to whether an injury was reasonably discoverable and thus functions as an outer limit on when a lawsuit may be brought. The three-year statute of limitations based on the discovery rule requires not only discovering the injury but also discovering that the malpractice likely caused the injury.

A claimant in a medical malpractice lawsuit must file a certificate of a qualified expert attesting to a departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint. Medical malpractice claims in Maryland are initially filed with the Director of the Health Care Alternative Dispute Resolution Office, and the certificate is filed with the Director as well.

If the case eventually goes to court, a plaintiff must file a supplemental certificate of a qualified expert with the court within 15 days after discovery is required to be completed. This certificate will attest to the expert’s basis for alleging the specific standard of care, their qualifications to testify to the standard of care, the standard of care, the injury to the plaintiff, how the standard of care was breached, what the defendant should have done to meet the standard of care, and the inference that the breach proximately caused the plaintiff’s injury.

Massachusetts

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: $500,000 for pain and suffering, loss of companionship, embarrassment, and other general (non-economic) damages, except in cases involving a substantial or permanent loss or impairment of a bodily function or substantial disfigurement

A plaintiff in a Massachusetts medical malpractice lawsuit must demonstrate that they suffered harm, the harm was caused by the defendant physician’s conduct, and the defendant physician was negligent. In a medical malpractice case, negligence means that the physician committed a breach of the standard of care and skill of the average member of the profession practicing in their specialty.

The discovery rule in Massachusetts has been integrated by state courts into the statute of limitations. Thus, the three-year period starts running when the plaintiff learns or reasonably should learn that they were harmed by the defendant’s conduct. However, a lawsuit may not be brought more than seven years after the malpractice occurred, unless it is based on a foreign object left in a patient’s body.

Michigan

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: Generally $280,000 for non-economic damages; $500,000 for non-economic damages in cases involving certain severe disabilities

A plaintiff in a Michigan medical malpractice lawsuit must prove that, in light of the state of the art existing at the time of the alleged malpractice, the defendant failed to provide the plaintiff with the recognized standard of acceptable professional practice or care in the community in which the defendant practices or a similar community. If the defendant is a specialist, the plaintiff must prove that the defendant failed to provide the recognized standard of practice or care in that specialty, as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances. Regardless of whether the defendant is a specialist, the plaintiff must show that they were injured as a proximate result of the defendant failing to meet the applicable standard of care.

Although the main Michigan statute of limitations does not account for the discovery rule, a separate statute provides that a claim may be brought within six months after the plaintiff discovers or should have discovered the existence of the claim, if this is later than the general two-year period. However, a lawsuit usually may not be brought more than six years after the malpractice occurred.

A plaintiff or their attorney in a medical malpractice lawsuit must file with their complaint an affidavit of merit signed by a health professional whom the plaintiff’s attorney reasonably believes meets the requirements for an expert witness. The affidavit will certify that the health professional has reviewed the medical records. It must contain a statement of the applicable standard of care, the health professional’s opinion that this standard was breached, the actions that should have been taken or omitted by the defendant to have complied with the standard of care, and the manner in which the breach was the proximate cause of the injury.

Minnesota

Statute of limitations: 4 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in a Minnesota medical malpractice lawsuit must prove the standard of care recognized by the medical community as applicable to the defendant’s conduct, show that the defendant departed from that standard, and show that the defendant’s departure from the standard was a direct cause of the patient’s injuries.

There is no discovery rule in Minnesota, where the statute of limitations starts running when some compensable damage occurs as a result of the malpractice. A wrongful death claim based on medical malpractice must be brought within three years of the patient’s death, in addition to falling within the general medical malpractice statute of limitations.

When expert testimony is necessary for a medical malpractice lawsuit, a plaintiff generally must serve an affidavit of expert review on the defendant with the summons and complaint. The affidavit must be completed by the plaintiff’s attorney and generally must state that the attorney has reviewed the facts of the case with an expert whose qualifications provide a reasonable expectation that their opinions could be admissible at trial. The expert must hold the opinion that the defendant deviated from the standard of care and thus caused an injury to the plaintiff.

Mississippi

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: $500,000 for non-economic damages

A plaintiff in a Mississippi medical malpractice lawsuit must show the existence of a duty on the part of the defendant to conform to a specific standard of conduct, the specific standard of conduct, proximate causation leading from the defendant’s breach of the duty to the plaintiff’s injury, and resulting damages. Expert testimony is required for the first three elements.

The discovery rule in Mississippi is integrated into the statute of limitations. This provides that the two-year period starts running when the malpractice is discovered or might have been discovered with reasonable diligence. However, a lawsuit generally cannot be filed more than seven years after the malpractice occurred. Exceptions apply to cases in which a foreign object was left in a patient’s body and cases involving fraudulent concealment. In these cases, the statute of limitations does not start running until the foreign object or the fraud is discovered or reasonably should be discovered.

When expert testimony is necessary in a medical malpractice case, a certificate executed by the plaintiff’s attorney must accompany the complaint. This certificate generally must state that the attorney has reviewed the facts of the case and has consulted with at least one expert who is qualified to give expert testimony regarding the standard of care or negligence, and whom the attorney reasonably believes to be knowledgeable in the relevant issues. The attorney must have concluded based on this review and consultation that there is a reasonable basis for the lawsuit.

Missouri

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: Generally $400,000 for non-economic damages; $700,000 for non-economic damages in cases involving catastrophic injury or death

A plaintiff in a Missouri medical malpractice lawsuit must show that the health care provider failed to use the degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession and that this failure directly caused or contributed to the patient’s injury or death. Missouri has explicitly abolished its common-law cause of action for medical malpractice and replaced it with a statutory cause of action.

Missouri does not integrate the discovery rule into its general statute of limitations, which starts running when the malpractice occurs. A limited discovery rule applies in cases involving a foreign object left in a patient’s body and in cases in which a health care provider negligently failed to inform a patient of medical test results. In these cases, the two-year period starts running when the malpractice or the failure to inform was discovered or reasonably should have been discovered. However, a lawsuit generally may not be brought more than 10 years after the malpractice occurred.

A plaintiff or their attorney in a medical malpractice lawsuit must file an affidavit with the court stating that they have obtained the written opinion of a qualified health care provider on the case. The opinion must state that the defendant failed to use the care that a reasonably prudent and careful health care provider would have used under similar circumstances and that this failure to use reasonable care directly caused or contributed to the damages.

Montana

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: $250,000 for non-economic damages

A plaintiff in a Montana medical malpractice lawsuit must establish the applicable standard of care, show that the defendant departed from that standard of care, and show that the departure proximately caused the plaintiff’s injury. This generally requires expert testimony, which must exhibit reasonable medical certainty.

The discovery rule in Montana is integrated into the statute of limitations, which provides that the two-year period starts running when the plaintiff discovers the injury or should discover it through the use of reasonable diligence. However, a lawsuit generally may not be brought more than five years after the injury occurred.

Nebraska

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: $2.25 million total

A plaintiff in a Nebraska medical malpractice lawsuit must show the applicable standard of care and prove that the defendant deviated from that standard of care and that this deviation was the proximate cause of the plaintiff’s harm. The standard of care is what health care providers in similar communities and engaged in similar lines of work would ordinarily exercise and devote to the benefit of their patients under similar circumstances.

While the main Nebraska statute of limitations starts running when the malpractice occurs, Nebraska provides a separate statute of limitations based on the discovery rule. If the cause of action could not reasonably be discovered within the two-year period, a lawsuit may be brought within one year after the cause of action is discovered, or after facts are discovered that would reasonably lead to its discovery. However, a lawsuit may not be brought more than 10 years after the malpractice occurred.

Nevada

Statute of limitations: 1 year after discovery or 3 years after injury, whichever is earlier
Affidavit of merit: Required
Damages cap: $350,000 for non-economic damages

Professional negligence in a Nevada medical malpractice lawsuit is a failure of a health care provider, in rendering services, to use the reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced health care providers. Generally, a plaintiff must provide expert medical testimony, material from recognized medical texts or treatises, or the regulations of the facility where the alleged malpractice occurred to show the deviation from the standard of care and prove causation.

The Nevada statute of limitations is tolled in cases of fraudulent concealment. This is when a health care provider conceals any act, error, or omission on which the action is based, and the health care provider knows or reasonably should know of it.

A medical malpractice action must be filed with an affidavit that supports the allegations in the action and is submitted by a medical expert who practices or has practiced in an area that is substantially similar to the area in which the defendant practiced at the time of the alleged malpractice. The affidavit must identify by name or describe by conduct each health care provider who is alleged to be negligent, and it must factually describe a specific act or acts of alleged malpractice separately as to each defendant in simple, concise, and direct terms.

New Hampshire

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: None

A plaintiff in a New Hampshire medical malpractice lawsuit must prove the standard of acceptable professional practice in the medical care provider’s profession or specialty when the medical care was rendered and show that the defendant failed to act in accordance with the standard and that the injuries were a proximate result. A jury or judge must consider whether the defendant has acted with due care, having in mind the standards and recommended practices and procedures of their profession and the training, experience, and professed degree of skill of the average practitioner of their profession.

Although New Hampshire has a specific statute of limitations for medical malpractice claims, the New Hampshire Supreme Court has ruled that it is unconstitutional. The standard personal injury statute of limitations now applies to these lawsuits, and it provides that the three-year period starts running when the negligent act occurs. However, the discovery rule has been added to this statute of limitations. When an injury and its causal relationship to the negligence could not reasonably have been discovered when the negligence occurred, the three-year period starts running when the plaintiff discovers or reasonably should discover the injury and its causal relationship to the negligence.

New Jersey

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in a New Jersey medical malpractice lawsuit must prove the applicable standard of care and show that a deviation has occurred and that the deviation proximately caused the injury. The standard of care is the level of care that any similarly credentialed member of the profession would exercise in a similar scenario.

Although the New Jersey statute of limitations does not explicitly integrate the discovery rule, the New Jersey Supreme Court has stated that the statute of limitations begins to run when the plaintiff is aware or reasonably should be aware of facts indicating that they have been injured through the fault of someone else.

A plaintiff in a medical malpractice lawsuit generally must provide each defendant with an affidavit of an appropriate licensed person within 60 days after the answer to the complaint is filed. The affidavit must state that there is a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint fell outside acceptable professional or occupational standards or treatment practices.

New Mexico

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: $750,000 total (excluding past and future medical care and related benefits) for claims against independent providers, adjusted annually; $4 million total (excluding past and future medical care and related benefits) for claims against hospitals and outpatient health care facilities, increasing by $500,000 per year until reaching $6 million for claims based on injuries in 2026 and then adjusted annually

A New Mexico medical malpractice lawsuit includes any cause of action arising against a health care provider for medical treatment, lack of medical treatment, or other claimed departure from accepted standards of health care that proximately resulted in an injury to the patient. The discovery rule does not apply in New Mexico, which provides that the three-year statute of limitations generally starts running when the malpractice occurs.

New York

Statute of limitations: 2.5 years (30 months)
Affidavit of merit: Required
Damages cap: None

A plaintiff in a New York medical malpractice lawsuit must prove that the physician deviated or departed from accepted community standards of practice and that this departure was a proximate cause of the plaintiff’s injuries. Traditionally, the standard of care requires a physician to use the skill and learning of the average physician, to exercise reasonable care, and to exert their best judgment in the effort to bring about a good result.

The discovery rule does not apply in most medical malpractice cases in New York. The main statute of limitations provides that the 30-month period starts running when the malpractice occurs, or with the last treatment when there is continuous treatment for the same condition. However, a limited discovery rule applies in cases involving a foreign object left in a patient’s body, which may be brought within one year after discovery or the discovery of facts that would reasonably lead to discovery. There is also a very specific exception for cases involving an alleged negligent failure to diagnose cancer or a malignant tumor.

The complaint in any medical malpractice lawsuit must be accompanied by a certificate executed by the attorney for the plaintiff. The certificate generally must declare that the attorney has reviewed the facts of the case and has consulted with at least one licensed physician whom the attorney reasonably believes is knowledgeable in the relevant issues. It also generally must state that the attorney has concluded on the basis of their review and consultation that there is a reasonable basis for filing the action.

North Carolina

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: $500,000 for non-economic damages, with periodic adjustments; no cap in limited situations involving egregious conduct and severe injuries

A plaintiff in a North Carolina medical malpractice lawsuit must show the applicable standard of care, a breach of the standard of care by the defendant, proximate cause linking the breach to the injuries suffered by the plaintiff, and damages resulting to the plaintiff. The standard of care is the standards of practice among members of the same health care profession with similar training and experience, situated in the same or similar communities, under the same or similar circumstances at the time of the alleged malpractice.

The North Carolina statute of limitations provides a separate period for filing a lawsuit when an injury occurs under circumstances that make it not readily apparent at the time. If the injury is discovered or reasonably should be discovered two or more years after the last act of malpractice, the lawsuit must be brought within one year after discovery. However, a lawsuit generally cannot be brought more than four years after the last act of malpractice. A special rule applies to cases involving a foreign object left in a patient’s body, in which a lawsuit may be brought within one year after discovery but not more than 10 years after the last act of malpractice.

North Dakota

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: $500,000 for non-economic damages; courts may review awards of economic damages greater than $250,000

Health care negligence in the context of a North Dakota medical malpractice claim means an act or omission by a health care provider that deviated from the applicable standard of care and caused an injury.

Although the medical malpractice statute of limitations is vaguely worded, the North Dakota Supreme Court has ruled that the two-year period begins to run only when the plaintiff knows or reasonably should know of the injury, its cause, and the defendant’s possible negligence. However, a lawsuit must not be brought more than six years after the malpractice occurred unless fraudulent conduct prevented discovery.

A plaintiff in a medical malpractice lawsuit must serve the defendant with an affidavit containing an admissible expert opinion to support a case of professional negligence within three months after the action is filed. The affidavit must identify the name and business address of the expert, indicate their field of expertise, and contain a brief summary of the basis for their opinion. The affidavit requirement does not apply to cases involving a foreign object left in a patient’s body, the performance of a medical procedure on the wrong patient or wrong body part, or other obvious occurrences..

Ohio

Statute of limitations: 1 year
Affidavit of merit: Required
Damages cap: $250,000 or three times economic damages (whichever is greater) for non-economic damages, but no more than $350,000 per plaintiff or $500,000 per occurrence; cap increases to $500,000 per plaintiff or $1 million per occurrence for certain severe injuries; no cap for wrongful death

A plaintiff in an Ohio medical malpractice lawsuit must establish the standard of care (as generally shown through expert testimony), the failure of the defendant to meet the requisite standard of care, and a direct causal connection between the medically negligent act and the injury. The standard of care is the degree of skill, care, and diligence that a physician of the same medical specialty would employ in similar circumstances.

According to the Ohio Supreme Court, the medical malpractice statute of limitations implicitly integrates the discovery rule. Thus, the statute of limitations does not start running until the patient discovers or reasonably should discover the injury, or until the physician-patient relationship for the condition ends, whichever is later. However, a lawsuit generally must be filed within four years after the malpractice occurred. Exceptions to this statute of repose apply when a foreign object is left in a patient’s body or when a patient could not have discovered the injury within three years after the malpractice occurred but discovers it during the fourth year of the repose period. In either case, a lawsuit may be filed within one year after discovery.

When a plaintiff in a medical malpractice lawsuit files their complaint, they must file an affidavit of merit related to each defendant named in the complaint. An affidavit of merit must be provided by an expert witness who meets certain requirements. The affidavit must include a statement that the expert has reviewed the medical records reasonably available to the plaintiff concerning the allegations in the complaint, a statement that the expert is familiar with the applicable standard of care, and the expert’s opinion that the standard of care was breached by one or more defendants and that the breach caused an injury to the plaintiff.

Oklahoma

Statute of limitations: 2 years
Affidavit of merit: Not required (ruled unconstitutional by Oklahoma Supreme Court)
Damages cap: None

A plaintiff in an Oklahoma medical malpractice lawsuit must prove the four elements that are typical of other negligence actions: a duty of care owed by the defendant to the plaintiff, a breach of that duty, an injury, and causation. The element of duty requires a physician-patient relationship. A physician is not responsible for a mistake in judgment unless the mistake is so gross that it makes the professional conduct substandard.

The Oklahoma statute of limitations specifically integrates the discovery rule. The two-year period does not start running until the plaintiff knows or reasonably should know of the death, injury, or condition giving rise to the claim.

Oregon

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: None, except in wrongful death cases

A plaintiff in an Oregon medical malpractice lawsuit must prove a duty that runs from the defendant to the plaintiff, a breach of that duty, a resulting harm to the plaintiff measurable in damages, and causation. Oregon law provides that a physician licensed to practice medicine by the Oregon Medical Board must use the degree of care, skill, and diligence that is used by ordinarily careful physicians in the same or similar circumstances in the physician’s community or a similar community.

The Oregon statute of limitations specifically integrates the discovery rule. It provides that the two-year period starts running when the injury is first discovered, or should have been discovered in the exercise of reasonable care. However, a lawsuit generally must be brought within five years after the malpractice occurred. There is an exception when the lawsuit has not been brought within five years because of fraud, deceit, or misrepresentation. In this case, the lawsuit may be brought within two years after the fraud, deceit, or misrepresentation is discovered or reasonably should be discovered.

Pennsylvania

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in a Pennsylvania medical malpractice lawsuit must show a duty owed by the physician to the patient, a breach of that duty by the physician, proximate causation between the breach and the harm, and damages that were a direct result of the harm. The standard of care for a physician who is not a specialist is the skill and knowledge usually possessed by physicians in the same or a similar locality, giving due regard to the advanced state of the profession at the time of the treatment. The physician also must exercise the care and judgment of a reasonable person in employing the required skill and knowledge. The standard of care for a specialist acting within their specialty is the degree of skill, learning, and care normally possessed and exercised by the average physician who devotes special study and attention to the diagnosis and treatment of diseases within the specialty.

The discovery rule in Pennsylvania operates to toll the statute of limitations. Pennsylvania courts have held that the discovery rule prevents the statute of limitations from running until the plaintiff knows or reasonably should know that they have been injured and that the injury has been caused by someone else’s conduct. However, a lawsuit may not be filed more than seven years after the malpractice occurred. There is an exception for cases involving a foreign object left in a patient’s body.

A plaintiff or their attorney in a medical malpractice case must file a certificate of merit signed by the plaintiff or their attorney with the complaint, or within 60 days after filing the complaint. The certificate generally must declare that an appropriate licensed professional has supplied a written statement that there is a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint fell outside acceptable professional standards and that this conduct was a cause of the harm. (If expert testimony is unnecessary, the certificate may state this fact instead.)

Rhode Island

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: None

A plaintiff in a Rhode Island medical malpractice lawsuit, as in any other negligence action, must establish that the defendant had a duty to act or refrain from acting and that there was a causal relation between the act or omission of the defendant and the injury to the plaintiff. The standard of care is the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which the defendant belongs, acting in the same or similar circumstances.

The discovery rule is integrated into the Rhode Island statute of limitations. For injuries due to medical malpractice that could not reasonably be discovered at the time of the malpractice, a lawsuit must be brought within three years after the malpractice reasonably should have been discovered.

South Carolina

Statute of limitations: 3 years
Affidavit of merit: Required
Damages cap: $350,000 for non-economic damages (adjusted annually) in claims against a single health care provider or facility; $1.05 million per claimant (adjusted annually) for non-economic damages in claims against multiple health care providers or facilities, but no more than $350,000 from any single provider or facility; no caps in limited situations involving egregious conduct

A plaintiff in a South Carolina medical malpractice lawsuit must prove the presence of a doctor-patient relationship between the parties, the recognized and generally accepted standards, practices, and procedures that are exercised by competent physicians in the same branch of medicine under similar circumstances, and negligence by the defendant that deviated from the generally accepted standards, practices, and procedures. The plaintiff also must prove an injury and show that the negligence was a proximate cause of the injury.

The discovery rule is integrated into the South Carolina statute of limitations. This provides that the three-year period starts on the date of discovery or when the malpractice reasonably ought to have been discovered. However, a lawsuit generally may not be brought more than six years after the malpractice occurred. A lawsuit based on a foreign object left in a patient’s body must be brought within two years after discovery or when it reasonably ought to have been discovered, but it does not need to be brought less than three years after the foreign object was left there.

Before filing a civil action based on medical malpractice, a plaintiff must contemporaneously file a notice of intent to file suit and an affidavit of an expert witness in a county where the action may be filed. The affidavit must specify at least one negligent act or omission claimed to exist and the factual basis for each claim, based on the available evidence when the affidavit is filed.

South Dakota

Statute of limitations: 2 years
Affidavit of merit: Not required
Damages cap: $500,000 for general (non-economic) damages

A plaintiff in a South Dakota medical malpractice lawsuit must show that they were harmed because the defendant failed to conform to the standard of care that the law establishes for members of their profession. This is the obligation to have and use the skill and care that members of their profession commonly possess and exercise under similar circumstances.

There is no discovery rule in South Dakota. The statute of limitations provides that a lawsuit must be brought within two years after the malpractice occurred. Courts have interpreted this statute as essentially a statute of repose.

Tennessee

Statute of limitations: 1 year
Affidavit of merit: Required
Damages cap: Generally $750,000 for non-economic damages; $1 million for non-economic damages in cases involving catastrophic injury or loss; no cap in limited situations involving egregious conduct

A plaintiff in a Tennessee medical malpractice lawsuit must prove the recognized standard of acceptable professional practice in the profession and the specialty (if any) that the defendant practices in the community in which the defendant practices or in a similar community when the alleged malpractice occurred. Moreover, the plaintiff must show that the defendant failed to act with ordinary and reasonable care in accordance with this standard and that the plaintiff suffered injuries as a proximate result of the defendant’s negligent act or omission.

The discovery rule is integrated into the Tennessee statute of limitations. This provides that a patient has one year after discovery to file a lawsuit if the injury is not discovered within the general one-year period. However, a lawsuit may not be brought more than three years after the malpractice occurred. There are exceptions for fraudulent concealment and cases in which a foreign object was left in a patient’s body. In these situations, the lawsuit must be brought within one year after the discovery of the cause of action (for fraudulent concealment) or one year after the injury or wrongful act is discovered or should have been discovered (for a foreign object).

In a medical malpractice lawsuit in which expert testimony is required, the plaintiff or their attorney must file a certificate of good faith with the complaint. This must state that the plaintiff or their attorney has consulted with one or more experts, who have provided a signed written statement. The statement generally must confirm that the experts are competent to express an opinion in the case and that they believe that, based on the medical records, there is a good-faith basis to maintain the action.

Texas

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: $250,000 per claimant for non-economic damages against a physician or provider; $250,000 per claimant for non-economic damages against a single institution; $500,000 per claimant for non-economic damages in claims against multiple institutions, but no more than $250,000 per institution; $500,000 per claimant for all damages in wrongful death claims against physicians

A plaintiff in a Texas medical malpractice lawsuit must show a duty by the defendant to act according to applicable standards of care, a breach of the applicable standard of care, an injury, and a causal connection between the breach and the injury. The standard of care is how a physician of reasonable and ordinary prudence would act under the same or similar circumstances.

The Texas statute of limitations provides that the two-year period starts running when the malpractice occurs, or when the treatment that is the subject of the claim is completed. The Texas Supreme Court has held that this law has abolished the discovery rule. However, the “open courts” provision of the Texas Constitution may allow a plaintiff to bring a claim within a reasonable time after discovery if they could not have discovered the injury within the two-year period. A lawsuit must not be brought more than 10 years after the malpractice occurred.

A claimant in a medical malpractice lawsuit must serve on the defendant or their attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a claim is asserted. An expert report is a written report that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the way in which the care rendered by the defendant failed to meet the standards, and the causal relationship between the failure and the harm.

Utah

Statute of limitations: 2 years
Affidavit of merit: Not required (ruled unconstitutional by Utah Supreme Court)
Damages cap: $450,000 for non-economic damages

A plaintiff in a Utah medical malpractice lawsuit must prove the standard of care required of physicians under similar circumstances practicing in the same field or specialty. They also must show that the applicable standard of care was breached, the injury to the plaintiff was proximately caused by the defendant’s negligence, and damages occurred as a result of the defendant’s breach of duty.

The discovery rule is integrated into the Utah statute of limitations, which provides that the two-year period starts running when the patient discovers or reasonably should discover the injury. However, a lawsuit must not be brought more than four years after the malpractice occurred. There is a separate rule for cases involving a foreign object left in a patient’s body, in which a lawsuit must be brought within one year after the patient discovers or reasonably should discover the existence of the foreign object. A parallel rule applies to cases involving fraudulent concealment.

Vermont

Statute of limitations: 3 years
Affidavit of merit: Required
Damages cap: None

A plaintiff in a Vermont medical malpractice lawsuit must prove the degree of knowledge or skill possessed, or the degree of care ordinarily exercised, by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances, whether or not within Vermont. The plaintiff also must show that the defendant lacked this degree of knowledge or skill, or failed to exercise this degree of care, and that, as a proximate result, the plaintiff suffered injuries that would not otherwise have been incurred.

The Vermont statute of limitations includes a separate time period based on the discovery rule. This provides two years to file a lawsuit after the injury is discovered or reasonably should be discovered, if this is later than the general three-year period. However, a lawsuit must not be filed more than seven years after the malpractice occurred. A separate rule applies to cases involving a foreign object left in a patient’s body. This type of lawsuit may be brought within two years of the discovery of the foreign object. No statute of limitations applies to cases involving fraudulent concealment.

The plaintiff or their attorney in a medical malpractice lawsuit must file a certificate of merit simultaneously with filing the complaint. This involves certifying that the plaintiff or their attorney has consulted with a qualified health care provider who has described the applicable standard of care, indicated that there is a reasonable likelihood that the plaintiff will be able to show that the defendant failed to meet the standard of care, and indicated that there is a reasonable likelihood that the plaintiff will be able to show that the defendant’s failure to meet the standard of care caused the plaintiff’s injury.

Virginia

Statute of limitations: 2 years
Affidavit of merit: Required
Damages cap: $2.55 million total, increased by $50,000 each July until reaching $3 million for malpractice committed in July 2031 or later

A plaintiff in a Virginia medical malpractice lawsuit must show that they were injured because the defendant failed to meet the applicable standard of care. This is the degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in Virginia. The standard of care in the locality where the alleged malpractice occurred, or in similar localities, will be applied if any party proves that the health care services and health care facilities available in the locality and the customary practices in the locality or similar localities give rise to a standard of care that is more appropriate than a statewide standard.

The discovery rule generally does not affect the statute of limitations in Virginia, but there are a few specific situations in which it applies. When a foreign object is left in a patient’s body, they have one year to file a lawsuit after the object is discovered or reasonably should be discovered. If fraud, concealment, or intentional misrepresentation prevented discovery of the injury within the two-year period, a lawsuit may be filed within one year after the injury is discovered or reasonably should be discovered. A very specific rule applies to cases involving a negligent failure to diagnose a malignant tumor, cancer, or certain other conditions. However, a lawsuit generally must not be brought more than 10 years after the malpractice occurred.

A motion for judgment in a medical malpractice lawsuit is deemed a certification that the plaintiff has obtained a written opinion signed by an expert witness whom the plaintiff reasonably believes would qualify as an expert witness. The opinion must state that, based on a reasonable understanding of the facts, the defendant deviated from the applicable standard of care, and the deviation was a proximate cause of the injuries. A certification is not necessary if the plaintiff brings a medical malpractice lawsuit that asserts a theory of liability for which expert testimony is unnecessary.

Washington

Statute of limitations: 3 years
Affidavit of merit: Not required (ruled unconstitutional by Washington Supreme Court)
Damages cap: None

A plaintiff in a Washington medical malpractice lawsuit generally must show that the defendant health care provider failed to exercise the degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which the defendant belongs, in the state of Washington, acting in the same or similar circumstances. The plaintiff must show that this failure was a proximate cause of their injury. State law also provides that a patient may bring a claim if the health care provider promised that the injury would not occur, or if the injury resulted from health care to which the patient did not consent.

Washington law has codified the discovery rule in conjunction with the general statute of limitations. It provides that a lawsuit must be brought within one year of when the patient discovered or reasonably should have discovered that their injury or condition was caused by the defendant’s malpractice, if this is later than the standard three-year period. However, a lawsuit generally may not be brought more than eight years after the malpractice occurred. (There is some uncertainty regarding whether this statute of repose is constitutional.) Fraud, intentional concealment, and the presence of a foreign object in a patient’s body each tolls the statute of limitations and the statute of repose until the patient has actual knowledge of the fraud, concealment, or presence of the foreign object. A patient then has one year to file a lawsuit.

Washington, D.C.

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: None

A plaintiff in a Washington, D.C. medical malpractice lawsuit must prove the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff’s injury. The standard of care is defined by the course of action that a reasonably prudent doctor with the defendant’s specialty would have taken under the same or similar circumstances.

Although Washington, D.C. has not explicitly integrated the discovery rule into its statute of limitations, courts have held that the statute of limitations does not start running until the patient knows or reasonably should know of the injury, the factual cause of the injury, and evidence of the malpractice. Washington, D.C. requires a plaintiff to serve a notice of intent to sue on the defendant at least 90 days before filing the lawsuit. If the notice is served within 90 days before the statute of limitations expires, the limitations period is extended for 90 days after the notice is served.

West Virginia

Statute of limitations: Generally 2 years
Affidavit of merit: Required
Damages cap: Generally $250,000 for non-economic damages; $500,000 for non-economic damages in cases involving death or certain catastrophic injuries; amounts adjusted annually to account for inflation

A plaintiff in a West Virginia medical malpractice lawsuit must prove that the defendant health care provider failed to exercise the degree of care, skill, and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the defendant health care provider belongs, acting in the same or similar circumstances. The plaintiff also must show that this failure was a proximate cause of the injury or death.

The discovery rule is integrated into the West Virginia statute of limitations. This provides that a lawsuit must be brought within two years of when a patient discovers or reasonably should discover their injury. A distinctive statute of limitations applies to claims against nursing homes, assisted living facilities, hospital entities providing intermediate or skilled nursing care, or employees of these facilities. This limits the period for filing a lawsuit to one year. In general, a lawsuit may not be brought more than 10 years after the medical injury occurred. Fraudulent concealment or misrepresentation may toll these time limits.

At least 30 days before filing a medical malpractice action against a health care provider, the claimant must serve a notice of claim on each prospective defendant. The notice of claim must include a screening certificate of merit. This must be executed under oath by a health care provider who is qualified as an expert and meets certain requirements. The screening certificate of merit must state the basis for the expert’s familiarity with the applicable standard of care, the expert’s qualifications, the expert’s opinion regarding how the standard of care was breached, the expert’s opinions regarding how the breach resulted in the injury, and a list of medical records and other information reviewed by the expert.

Wisconsin

Statute of limitations: 3 years
Affidavit of merit: Not required
Damages cap: $750,000 for non-economic damages

A plaintiff in a Wisconsin medical malpractice lawsuit must prove the same four elements as a plaintiff in any other negligence case. These are a duty of care on the part of the defendant, a breach of that duty, a causal connection between the conduct and the injury, and an actual loss or damage as a result of the injury. The standard of care applicable to physicians in Wisconsin must be established by a determination of what it is reasonable to expect of a professional, given the state of medical knowledge at the time of the treatment in issue.

Wisconsin has codified the discovery rule as an alternative time period to its standard statute of limitations. This discovery rule provides that a lawsuit may be filed within one year after the injury was discovered or reasonably should have been discovered, if this is later than the three-year period. However, a lawsuit generally may not be brought more than five years after the malpractice occurred.

Wyoming

Statute of limitations: 2 years
Affidavit of merit: Not required (repealed)
Damages cap: None

A plaintiff in a Wyoming medical malpractice lawsuit must prove that a defendant certified by a national certificating board or association failed to act in accordance with the standard of care to which that national board or association adheres. If the defendant does not have this type of certification, the plaintiff must prove that the defendant failed to act in accordance with the standard of care to which health care providers in good standing performing similar health care services adhere.

The discovery rule is integrated into the Wyoming statute of limitations, which provides that a lawsuit may be filed within two years after the discovery of the malpractice if the claimant can show that the malpractice was not reasonably discoverable within a two-year period, or the claimant did not discover the malpractice within the two-year period despite the exercise of due diligence. Also, the section of the statute of limitations that provides a two-year period to file a lawsuit after the malpractice occurred states that the period for bringing a lawsuit will be extended by six months if the malpractice is discovered during the second year of that two-year period.

Last reviewed September 2022

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