Statute of Limitations

A birth injury may result in a lifetime of damage, but there is a finite amount of time for those affected to take legal action.

In Massachusetts, as in all states, there are strict time limits on when medical malpractice action can be initiated and filed. This is known as the “statute of limitations.”

The Boston birth injury lawyers at Jeffrey Glassman Injury Lawyers know it is imperative for victims of medical malpractice to act quickly. Filing a claim on the eve of a deadline could drive up legal costs because the amount of work your attorney will need to accomplish in a short time is voluminous. Also, waiting too long could result in forever losing the right to file a claim or collect damages.

Understand that these deadlines are applicable whether you intend solely to pursue a settlement or take your case to trial. Often, you won’t know whether defendants or their insurers are willing to settle until the claim is filed. And you won’t even get those parties to the table to negotiate at all if your claim is filed after the statute of limitations has expired.

MGL c. 260 § 4 is the law that provides guidance on statutes of limitations for medical malpractice. Any tort stemming from medical negligence resulting in bodily injury or death has to be brought within Three Years of the time the “cause of action” accrues.

The cause of action can be:

• The time of the injury or death;
• The time at which injury or cause of death was discovered;
• The time at which injury or cause of death should have been discovered.

The statute of limitations applies to cases against doctors, surgeons, hospitals, nurses, midwives and other health care providers.

There are some situations in which the courts will allow a tolling of the statute of limitations, meaning plaintiffs are given an extension. But the maximum amount of time one has even in these situations is Seven Years from the date the cause of action accrues.

The statute of limitations is generally the same for children, though MGL c. 231 § 60D provides some additional guidance. This law spells out claims by minors against providers of health care.

This law states that while minors generally do still have just three years in which to bring a claim, minors who suffered as a result of medical negligence have until their ninth birthday in which to file a claim. But still, in NO event should any such action be commenced more than seven years after the occurrence of the act or omission – except where the injury was caused by a physician leaving a foreign object in the body. As that is not usually the case in birth injuries, it is important to weigh your legal options as soon as grounds for the claim become known.

State laws make it clear that medical malpractice claims in Massachusetts are subject to a timeline cut-off. But when does the clock start ticking?

If we were handling an auto liability lawsuit, the answer would be easy: The date of the accident. Generally, that’s when most injuries stemming from that situation are known or become knowable.

However, medical malpractice cases and birth injuries and particular may not be immediately apparent. A parent may not realize their child has been a victim of medical malpractice for months or sometimes even years after the birth.

• Example 1: A child is diagnosed with cerebral palsy soon after birth, but the fact that the cause of the condition was a result of physician error during childbirth is not immediately known.
• Example 2: A child suffers a lack of oxygen at birth, but has no apparent symptoms until the age of 2, at which time he or she displays cognitive impairment.

In situations like these, the statute of limitations may be tolled (or suspended) until that injury is discovered or should have been discovered. This is why it is known as the “Discovery Rule.”

Only patients/ parents who truly did not know and could not have reasonably discovered their injury and/or its cause are entitled to relief under the discovery rule. Otherwise, the standard three-year statute of limitations applies.