There are time limits for bringing malpractice and other cases – and those time limits are almost always bright lines. Run out of time and your case is dead.
The typical blog post would now provide you some simple rules. No can do. I will warn you right now that after you read this, you will likely be confused. (You can skip all this if you like, the real point is at the end anyway.)
While we are a Virginia law firm, we handle Federal Tort Claims Act (FTCA) cases all over the country. Among other things this means we need to understand the “substantive law” wherever we have a case.
At the most basic level, there are statutes of limitations (SOL). Different states have different limits. Different types of actions might also be different. You must do a particular analysis of the facts at issue and that jurisdiction’s law. This is certainly true in Virginia. The limits are different based on the circumstances.
In our FTCA cases, the statute of limitations is set at two years. In FTCA cases, the procedures are federal, which includes calculating the SOL Except there are instances where a state’s substantive law is such that you need to consider the limitations in the state where the injury occurred. That gets super complicated, involving issues of derivative and independent wrongful death actions.
An obvious question is when does the clock start running. This is what is called “accrual.” Depending on where you are, this might be when you “knew or should have known” of the potential for a claim (which is the FTCA standard). In other instances, it’s when the first harm happened. How either or some other standard is defined is variable. In malpractice cases, some jurisdictions don’t start the clock until the relationship with the healthcare provider has ended. This is sometimes called the “continuing treatment rule.”
Sometimes, the clock stops running. Of course, we lawyers have our own special word for that, “tolling.” This can happen, for example, when someone is incapacitated. That’s not true everywhere, however. Some places are very narrow as to what might constitute tolling. Other places are less strict.
Let’s not forget statutes of repose. Those are often harsh laws that arbitrarily cut off an action after a certain period. It doesn’t matter whether you knew or even could have known of a possible case. After a certain amount of time, it’s gone. You have no case.
As I forewarned, if you are not a lawyer, the above probably sounds like a bunch of gobbledygook.
Figuring out the time limits for bringing a case seems like it should be easy. It’s not. Even good lawyers can get confused. There are always plenty of pitfalls and gray areas.
If you think you might have a case, don’t delay finding a lawyer.
Even if you have a seemingly good case, if you wait too long you will likely have a hard time finding an attorney. Most firms are very wary of even looking at matters which are close to the expiration of the SOL. Our firm is no exception.
Let me restate the obvious: DON’T DELAY FINDING A LAWYER
The clock is running.
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