Guide to the Birth Injury Statute of Limitations in Every State
Every state sets a time limit on when a birth injury lawsuit must be filed, known as the statute of limitations. This time frame can vary based on such factors as who files the claim or when the injury is discovered. It is important to contact an experienced birth injury lawyer as soon as possible. If your claim is not filed before the birth injury statute of limitations expires, you lose your right to hold the negligent health care providers accountable.
Is There a Time Limit To Sue for My Child’s Birth Injury?
Yes. Every state imposes a deadline for filing birth injury lawsuits. However, some exceptions could shorten or extend this time frame. You should never assume you qualify for any extension without talking to a reputable birth injury attorney.
Statutes of limitations are complex. If you guess wrong, you could forever forfeit your right to claim your well-deserved compensation.
What Are the Possible Exceptions to the Statutes of Limitations on Birth Injury?
The statute of limitations generally begins to accrue on the date the doctor made the mistake unless special circumstances prevent you from discovering the injury or filing a claim.
The Discovery Rule
The most common exception to the deadline applies when your child’s injury is not discovered at birth. When the statute of limitations is extended based on a delayed date of discovery, this is known as the discovery rule. Not all states offer this exception.
The discovery rule commonly applies to birth injury cases because many injuries are not apparent until the child reaches certain stages of development. For example, a cerebral palsy diagnosis can stem from oxygen deprivation during birth due to negligence, but it may not be diagnosed until after the statute of limitations has expired.
The discovery rule gives parents extra time to file their cerebral palsy claims based on the discovery date rather than the date the doctor committed the error.
There are some limitations to the discovery rule. The discovery date is generally defined as the date you discovered or should have discovered the injury with the exercise of reasonable diligence. Defendants will likely argue that you should have discovered the injury sooner than you did.
Most states with the discovery rule also have a statute of repose, which sets a hard deadline for filing suit, regardless of when the injury was discovered. If you discover the injuries after the statute of repose has expired, it is generally too late to file a claim.
Fraudulent Concealment
If health care provider prevents you from discovering the true cause of your child’s injuries by actively concealing the malpractice in some way, your state may give you extra time to file your birth injury claim.
Incapacity
People who have been declared legally incompetent cannot file a lawsuit. As a result, most states toll, or pause, the statute of limitations until the person is declared competent.
The statute of limitations is also tolled in most states for minors. Some states pause the statute of limitations until after the child’s eighteenth birthday, but most states require a claim to be filed on behalf of the child well before adulthood.
Death of the Child
If your child tragically dies from a birth injury, you may be eligible to file a wrongful death claim against negligent health care providers. The statute of limitations for a birth injury resulting in death sometimes differs from the law applicable to non-fatal birth injuries.
The statute of limitations may begin to accrue on the date your child died or the date your health care provider committed the error causing their death. The accrual date varies by state.
Cases Involving Government Entities
If your child was born in a government facility, such as a military or state-owned hospital, the statute of limitations may be shorter. It often depends on whether the defendant was an employee of the government facility or if the facility has direct responsibility for the injury. To pursue an action against a government entity, you may also be required to file an administrative claim within a shorter deadline before you can file a lawsuit.
Notice of Claim Requirements
Some states require that a Notice of Claim be sent to the health care providers being sued before filing a lawsuit, generally affecting the time limit. Such states require that the Notice of Claim be provided a certain number of days before you file your lawsuit.
If you wait too long to send this notice, the statute of limitations could expire before you can file your lawsuit, depending on the laws of your state.
Claims by the Parents Differ from Claims by the Injured Child
Birth injury statutes of limitations are more complex than in others because parents and children may have grounds to file separate claims for the same incident.
As parents, you can generally pursue damages for your financial and emotional losses related to the birth injury, including the following:
Children whose birth injuries result in lifelong disabilities can also pursue compensation for their losses, which may include lost earning capacity, pain and suffering, and medical expenses.
In most states, the statute of limitations for a parent’s claim is shorter than the one for the child’s claim. However, many states still require that a lawsuit be filed before the child turns 18, and some states do not allow additional time for a child to file a claim.
Children cannot file their own claims. A parent or personal representative must generally file suit on a minor’s behalf.
Interactive Table: Birth Injury Statute of Limitations by State
The statutes of limitations set by each state are the deadlines that apply to most cases. The only way to determine with certainty how the statute of limitations applies to your particular case is to consult a qualified birth injury lawyer in your jurisdiction.
Contact the Birth Injury Lawyers at Levin & Perconti Today
It is imperative that you not wait to contact an experienced birth injury lawyer, regardless of how long the statute of limitations is in your state. Birth injury lawsuits are complex cases that require thorough investigation and preparation before filing. Health care organizations are large corporations that generally will not pay fair compensation voluntarily.
Going against large organizations requires extensive medical knowledge, financial resources, and a strong network of experts and consultants. We are nationally recognized birth injury lawyers and pioneers in birth injury litigation. We have a proven track record and the resources to prevail against large corporations.
Our reputation has led attorneys nationwide to refer their most challenging cases to us because of our well-known success in handling birth injury cases. Below are a few examples of our successful birth injury case results:
verdict for a 19-year-old who suffered a disabling brain injury during birth due to a delayed C-section
verdict for a child who suffered permanent cognitive and development impairments from birth asphyxia and HIE
for the family of a child who sustained a brain injury from oxygen deprivation at birth
settlement against the United States Naval Hospital in Guam on behalf of a child who sustained a brain injury at birth due to negligent neonatal resuscitation and intubation.
If you or your child suffered an injury during birth because of medical negligence, don’t let the statute of limitations run out before you recover the compensation you deserve.
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