Statute of Limitations

Victims of medical malpractice are often grappling with the physical trauma and emotional damage that comes with such a violation of trust. It can be difficult in those early days to contemplate legal action.

The law recognizes victims need a little time to cope and grieve. But the window of opportunity for Massachusetts medical malpractice claims is not without limit. The Statute of Limitations imposes time constraints on these lawsuits.

At Jeffrey Glassman Injury Lawyers, we know in Massachusetts, with few exceptions, claimants must file their medical malpractice complaints within three years of the incident.

So victims of Massachusetts medical malpractice will have three years in which to formally file a lawsuit.

This requirement is codified in Massachusetts G.L. ch. 260 § 4, and allows exceptions for minors under the age of 6 (who are given until age 9).

Also, the statute of limitations may be tolled (or postponed) during plaintiff’s disability.

The clock doesn’t start ticking on the “accrual of action” until plaintiff learns – or reasonably should have learned – he or she was harmed as a result of defendant’s conduct.

But in no case – save for those in which plaintiff suffered harm as a result of a retained foreign object during surgery (i.e., surgical instruments, sponges, etc.) – can plaintiffs file a medical malpractice case beyond seven years. In cases of retained foreign objects, the limitations period starts when plaintiff discovered – or should have discovered – the foreign object.

In medical malpractice lawsuits that involve a wrongful death claim, the statute of limitations on those cases is also three years, and begins:

• Within three years of the date of death;
• Within three years of the date deceased executor or administrator knew or should have known the factual basis for the cause of action.

That three-year limit is what is sometimes referred to as the “standard deadline.” Most claims are going to fall under this standard, three-year term.

However, there is an exception under the “Discovery Rule.”

The discovery rule allows that the accrual of the “cause of action” starts not at the time of the incident (i.e., surgery, treatment diagnosis, etc.), but rather at the time the victim knew or should have known that he or she had a medical malpractice claim. This is especially helpful in situations where people don’t immediately know – and sometimes could not have known – that they were sickened or injured as a result of medical treatment.

The key question when the discovery rule is raised is at what point did the injured person (or surviving relative) have knowledge or sufficient notice that defendant’s medical treatment may have resulted in injuries? It is from this point that plaintiff has three years in which to commence the claim.

Children who are victims of medical malpractice in Boston follow the same general statute of limitations as adults – three years, but no more than seven years.

The one exception is children who were harmed before they turned 6-years-old.

In those cases, parents or guardians have until the child’s ninth birthday to bring a medical malpractice lawsuit.

Sometimes, medical malpractice victims are of the “wait-and-see” approach when it comes to pursuit of legal claims. This is especially true when the victim may lack 100 percent certainty as to the cause of one’s death or injuries.

But part of the reason statutes of limitations exist is because the legal system strives for accuracy – and this is for the benefit of both sides. After a certain period of time, witness memories will not be as sharp. Documents may be lost. Vital tissue samples might be destroyed. All of these may be of key importance to proving or disproving a case.

Limits are somewhat arbitrary, but the legislature has established a uniform rule best serves everyone.

Three years may seem like ample time.

However, keep in mind that all medical malpractice claims must first be vetted by the Massachusetts Medical Malpractice Tribunal before they can proceed to the trial phase. If for any reason the case must be voluntarily dismissed and refiled or amended to add more defendants, it all needs to happen within that three-year window. Given the complexity of medical malpractice claims, it’s best for plaintiff’s to get a lawyer on board early to begin an investigation.