Medical malpractice cases are among the most difficult, expensive, and time consuming of all personal injury cases. They’re also among the most misunderstood. The fact that your doctor made a medical error is absolutely essential to a malpractice case, but it’s not enough, standing alone, to make a claim that’s worth pursuing. To have a viable malpractice claim, you’ll also have to meet some other requirements.
In the discussion that follows, we’ll answer these two questions. First, how do I know if I have a medical malpractice case that’s worth pursuing? Second, what filing requirements and damage limits does my state put on medical malpractice claims?
How Do I Know If I Have a Viable Medical Malpractice Case?
Medical malpractice is just a fancy term for negligence—the failure, by a medical professional, to use an appropriate degree of care in diagnosing or treating an illness or condition. To know whether you have a medical malpractice case that’s worth pursuing, we have to start with the basic elements of a medical negligence claim.
Elements of a Medical Negligence Claim
Your medical malpractice claim won’t get out of the starting gate unless these elements are present:
- a doctor-patient relationship
- substandard care
- an injury, and
- a causal connection between the substandard care and your injury.
If all of these elements are present, you might have a viable medical malpractice claim. If any element is missing, you don’t have a case. Let’s review the elements in more detail.
A Doctor-Patient Relationship
This element shouldn’t be hard to establish, and it’s almost never in dispute. When might it be an issue? Say you’re hurt in a car wreck. A doctor happens by, checks your vital signs, and leaves when emergency responders arrive on the scene. Chances are you don’t have a doctor-patient relationship with that doctor.
Substandard Care
There are two sub-parts to this element. Each is critical to your case, and both are likely to be hotly disputed.
The standard of care. The standard of care describes how careful your doctor should have been when caring for you. Ask this question: What would a reasonably careful and competent doctor in the community—one with similar education and training as my doctor—have done in this situation? The answer to that question, or something close to it, likely describes the standard of care.
When it comes to deciding on the standard of care in a particular case, things can get complicated. The standard of care isn’t a universally agreed upon rule that doctors look up in a medical book. There can be—and often is—lots of disagreement about what the standard of care requires in a particular case.
Stated a bit differently, deciding on the appropriate standard of care calls for medical judgment and expertise. That’s one reason why, in a typical medical malpractice case, there are widely varying standard of care opinions.
Finally, note that the standard of care doesn’t guarantee perfect, mistake-free medicine. Errors happen, even with the best of care. So, too, do bad outcomes. A mistake or a bad outcome isn’t malpractice if it’s something that can happen with reasonable and competent medical care.
Failure to meet the standard of care. The standard of care asks what your doctor should have done under the circumstances. Here, we ask what your doctor actually did, and whether what your doctor did met the standard of care. When your doctor’s care falls below the standard—when it’s substandard—the law calls that a “breach” of the standard of care. A breach of the standard of care is medical negligence.
Why might it be difficult to decide whether your doctor’s care was substandard? Because while the standard of care sets the bar your doctor must clear, it doesn’t tell your doctor how to clear that bar. There might be different ways to diagnose an illness, or treat a condition, or do a surgery. And many of those ways might satisfy the standard of care.
Here too, there’s ample room for disagreement. Deciding what care is required by the standard of care involves medical judgment. Reasonable doctors might have different opinions, and in medical malpractice cases, they usually do.
An Injury
You don’t have a medical malpractice case unless you suffered an injury. How are you worse off now than you were before? Did your illness or medical condition get worse? Did you develop a new illness or condition you didn’t have before? Did your chances of survival or improvement get worse? These are all examples of the kinds of injuries that will support a medical malpractice claim.
Your injuries and losses (the law calls them “damages”) can also include things like:
- doctor, hospital, rehabilitation, and other medical bills
- lost earnings and employment benefits
- other out-of-pocket expenses, like amounts you have to pay for replacement household services
- pain and suffering
- emotional distress
- loss of enjoyment of life
- disability, and
- disfigurement.
In deciding whether you have a viable medical malpractice case, the question usually isn’t whether you suffered an injury. It’s whether your injury is bad enough to make a malpractice claim worthwhile. We’ll discuss this in more detail in “Complicating Factors,” below.
A Causal Connection Between the Substandard Care and Your Injury
This element—the legal shorthand is called “causation”—ties all the other elements together. In most cases, causation is pretty obvious. When a surgeon ruptures a blood vessel and you nearly bleed to death, the link between the two is apparent. When an orthopedist improperly sets a leg fracture, causing it to heal improperly and leading to walking problems, causation won’t be in doubt.
When causation is an open question, you can expect it to be vigorously contested. For instance, suppose your primary care doctor fails to timely diagnose your lung cancer, giving it time to spread and reducing your odds of survival. It seems like causation is obvious.
Not so fast. Your doctor might answer that the cancer was very aggressive and would have spread even if it had been diagnosed sooner, leaving you with the same (or nearly the same) decreased chance of survival. If a jury agrees, you’ll lose on causation.
Complicating Factors
If all of the above elements are present, you might have a medical malpractice claim that’s worth pursuing. “But if I meet all the elements of a claim,” you ask, “why wouldn’t it be worth pursuing?” Two words answer that question: Cost and risk. As we’ve already noted, medical malpractice claims are among the costliest and riskiest of all personal injury cases.
Several factors make medical malpractice cases more expensive and difficult than other kinds of cases. Here are two of the most significant.
Expert Witnesses
To prove the elements of your medical malpractice case, you’ll need expert witnesses—probably several of them. Experts are people who are qualified, by education, training, and experience, to testify about matters that are beyond the knowledge of most people, including judges and jurors.
When you file a malpractice lawsuit in court, it’s up to the judge—applying the state’s expert witness requirements—to decide whether your experts will be allowed to testify and, if so, on what issues. Many states have special requirements for medical experts. For instance, state laws often require that an expert doctor must have similar education and training, including board certification, as the doctor you’re suing for malpractice.
Expert witnesses are very expensive. Experts often charge many hundreds of dollars per hour for their time. The hours involved in reviewing a malpractice case, writing a report, and preparing for and testifying in deposition and if necessary, at trial, can add up quickly.
Here’s a quick example. Assume a medical malpractice case involving a spinal surgery gone bad. The plaintiff (the injured person filing the lawsuit), a 48 year-old former construction worker, was left partially paralyzed from the waist down. Now unable to do construction work, the plaintiff has lost significant past and future income. There’s also evidence that the plaintiff will require future medical care, including surgeries. The case doesn’t settle and must be tried.
How much in expert witness fees might this case involve? Suppose the plaintiff’s expert neurosurgeon charges $400 per hour. The doctor spends a total of 50 hours on the case. The total bill for this expert alone (not including expenses for travel, lodging, and meals) will be $20,000.
What other expert witnesses might be involved? Here are some possibilities, together with an estimate of their costs:
|
Expert Witness |
Estimated Cost |
|
Neurosurgeon (see above - M.D. or D.O.) |
$20,000 |
|
Rehabilitation medicine (M.D. or D.O.) |
$20,000 |
|
Psychologist (emotional injuries) (Ph.D) |
$15,000 |
|
Economist (lost earnings, future damages) (Ph.D) |
$15,000 |
|
Life care planner (future medical and other) (R.N.) |
$15,000 |
|
Total |
$85,000 |
While it might seem outrageous, $85,000 in expert fees wouldn’t be unusual in a medical negligence case like the one described above. And there will be other case expenses, too. For our hypothetical case, total expenses in excess of $100,000 would be common.
If you have a case that’s worth pursuing, you’ll probably be able to find a malpractice lawyer who’s willing to advance these expenses on your behalf. If you win the case, the lawyer will recoup the case expenses from your settlement or jury verdict. Given the expenses involved, you can see why malpractice attorneys tend to be very particular about the cases they take.
Lawyers do a cost-benefit analysis. Whether a lawyer will agree to take your medical malpractice case often comes down to a cost-benefit analysis. Based on the estimated value of your case, the case expenses likely to be involved, and the attorney’s fee, the lawyer will calculate a net value for your case.
To justify bringing a malpractice claim, your injuries have to be substantial—far more serious and costly than for almost any other kind of personal injury case. Think of your injuries and losses as the engine that drives your claim. If the engine isn’t big enough, the claim won’t go.
So, how does a lawyer decide if your injuries are enough for a claim to make sense? There’s no hard-and-fast rule. Most malpractice lawyers will use your medical expenses as a measuring stick. Unless those damages are at least low six figures (that is, over $100,000), you might have trouble finding a lawyer who will take your case.
Juries Love Doctors and Other Health Care Workers
Even when they make mistakes, jurors often give health care workers the benefit of the doubt. “They didn’t mean to hurt the plaintiff, they just did their best,” is something you’ll hear jurors say after a verdict favoring the doctor. Jurors are supposed to be impartial but the simple truth is that medical malpractice plaintiffs often start a trial at a disadvantage.
Of course, insurance company lawyers know all this. That’s one reason why medical malpractice cases settle less often. The doctor’s lawyers figure it's worth rolling the dice on a jury verdict because the odds favor their side.
State Filing Requirements and Damage Limits for Medical Malpractice Cases
For several decades, there’s been an ongoing tug-of-war between, on the one hand, the medical industry and its insurers, and on the other hand, the lawyers who represent injured medical malpractice plaintiffs. Doctors and their malpractice insurers argue that lots of frivolous malpractice claims have created a “health care crisis,” driving up the costs of insurance and health care.
Malpractice lawyers respond that health care costs have nothing to do with malpractice lawsuits. Instead, they say, greedy insurance companies have spent millions getting special laws passed that protect careless doctors and insurance company profits at the expense of innocent patients.
Regardless of which side has the better argument, the fact is that most states have passed laws that apply only (or primarily) to medical malpractice cases. Whether or not these laws reduce frivolous malpractice claims, they do make it harder and more expensive to bring legitimate lawsuits.
Three Categories of Laws
We’ll focus on laws that generally fall into one of three categories.
Lawsuit filing deadlines. These laws limit the time you have to file a medical malpractice case in court. Most states have enacted two deadlines. The first is called a “statute of limitations.” A statute of limitations gives you a fixed amount of time—two or three years is common—to file your lawsuit. The clock often begins to run on the date the malpractice happened.
Many states will allow you more time to file if you didn’t discover the malpractice (and couldn’t have discovered it) in time to meet the statute of limitations. This is where the second deadline, called a “statute of repose,” enters the picture. A statute of repose puts a maximum or outside limit on your time to file. It will kill your claim if you don’t file before it expires, even if you didn’t know (and couldn’t have known) that you had a malpractice claim.
Be very careful with these deadlines. Statutes of limitation and repose are among the most complex and difficult to understand of all laws. Our discussion here (and the information in the chart below) covers only some of the general rules.
Most states have enacted a variety of exceptions to their statute of limitations and, in some cases, their statute of repose. For instance, it’s normal to see exceptions for minor children, for cases involving foreign objects left in a patient’s body, and for cases involving fraud, to name only a few. A mistake here can cost you your chance to bring a malpractice claim.
Here are some examples of state statutes of limitations and repose.
- Alabama. The statute of limitations gives you two years from the date of the malpractice or if longer, six months from the date you discovered the malpractice, to file your lawsuit. Alabama’s statute of repose imposes a maximum filing deadline of four years from the date of the malpractice.
- Florida. Florida’s statute of limitations gives you two years from the date of the malpractice or if later, from the date you discovered the malpractice, to sue. The statute of repose is four years, meaning that’s the longest you have to file in court.
- Mississippi. Under Mississippi’s statute of limitations, you’ve got two years from the date you discover the malpractice to file your case. The statute of repose kills your claim if you haven’t filed within seven years from the date of the malpractice.
Pre-filing or post-filing requirements. Many states require that before you can file a medical malpractice case, you must have it reviewed by a medical expert. The expert must complete a certificate or an affidavit saying that the case has merit and explaining why.
In a few states, your malpractice case must be examined by a review panel to decide if it has merit. If the panel says you have no viable claim but you pursue it anyway and lose, you can be penalized. For instance, you might be ordered to pay the winning doctor’s case expenses.
Finally, many states require the plaintiff to give the doctor advance written notice of their intent to file a malpractice lawsuit. While the notice period varies, 60 to 90 days is typical.
Here are some examples.
- Ohio requires the plaintiff to file an affidavit of merit from a qualified expert for most medical malpractice lawsuits.
- Louisiana law mandates that a medical malpractice case must be submitted to a medical review panel before the dispute can go to court.
- California requires 90 days’ prior notice to any health care provider you intend to sue for medical malpractice.
Damage caps. As the name suggests, damage cap laws limit the damages you can collect if you win a medical malpractice case. Typically, the caps only apply to “general” damages—things such as pain and suffering, emotional distress, and loss of enjoyment of life. Higher caps might apply when the injury results in death or serious disability. Some states periodically adjust their caps for inflation.
Caps can put malpractice plaintiffs at a huge disadvantage, with the potential to significantly limit recoverable damages. Plaintiffs end up getting squeezed at both ends—astronomical case expenses on one end and limited payouts on the other. While controlling health care costs is a commendable goal, deserving malpractice plaintiffs sometimes end up shouldering a disproportionate share of the burden.
Here are some examples of state damage caps.
- In Colorado, noneconomic damages are capped at $300,000. Unlike most states, Colorado also has a $1,000,000 cap on total damages—both economic and noneconomic.
- Hawaii caps damages for pain and suffering at $375,000.
- Massachusetts limits noneconomic damages to $500,000 unless the injury results in permanent loss of a substantial bodily function or substantial disfigurement.
State Laws Chart
This chart lists the three categories of medical malpractice laws for each state and the District of Columbia. Keep in mind that these are only some of the general rules. There could be other rules or exceptions that apply to your case. Speak to a malpractice attorney in your state for advice about your circumstances.
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Alabama |
AL. Code 6-5-482: 2 yrs from date of malpractice or if later, 6 mos from date of discovery; max. 4 yrs from date of malpractice |
N/A |
N/A |
|
Alaska |
AK. Stat. 9.10.070: 2 yrs from date of accrual |
N/A |
AK Stat. 9.55.549: $250,000/$400,000 (catastrophic injuries or death) on noneconomic (general) damages |
|
Arizona |
AZ Stat. 12-542: 2 yrs from date of accrual |
AZ Stat. 12-2603: post-filing affidavit of merit (in most cases) |
N/A |
|
Arkansas |
AR Code 16-114-203: 2 yrs from date of malpractice |
N/A |
N/A |
|
California |
CA CCP 340.5: 3 yrs from date of injury or if earlier, 1 yr from date of discovery |
CA CCP 364: 90-day notice of intent to sue |
CA CIV 3333.2: $350,000 to $500,000 on noneconomic (general) damages, adjusted annually for inflation |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Colorado |
CO Stat. 13-80-102.5: 2 yrs from date of accrual; max 3 years from date of malpractice |
CO Stat. 13-20-602: post-filing certificate of merit |
CO Stat. 13-64-302: $300,000 on noneconomic (general) damages; $1,000,000 on total damages |
|
Connecticut |
CN Stat. 52-584: 2 yrs from date of injury or if later, date of discovery; max. 3 yrs from date of malpractice |
CN Stat. 52-190a: certificate of merit filed with lawsuit |
N/A |
|
Delaware |
DE Code 18-6856: 2 yrs from date of injury or if later, date of discovery; max. 3 yrs from date of injury |
DE Code 18-6853: affidavit of merit filed with lawsuit |
N/A |
|
District of Columbia |
DC Code 12-301: 3 yrs from date of accrual |
DC Code 16-2802: 90-day notice of intent to sue |
N/A |
|
Florida |
FL Stat. 95.11: 2 yrs from date of malpractice or if later, date of discovery; max. 4 yrs from date of malpractice |
FL Stat. 766.203: affidavit of merit provided with notice of intent to sue FL Stat. 766.106: 90-day notice of intent to sue |
N/A |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Georgia |
GA Code 9-3-71: 2 yrs from date of injury or death; max 5 yrs from date of malpractice |
GA Code 9-11-9.1: affidavit of merit filed with lawsuit |
GA Code 51-12-5.1: $250,000 on punitive damages only |
|
Hawaii |
HI Stat. 657-7.3: 2 yrs from date of discovery; max. 6 yrs from date of malpractice |
HI Stat. 671-12: pre-filing review panel HI Stat. 671-12.5: certificate of merit |
HI Stat. 663-8.7: $375,000 on pain and suffering |
|
Idaho |
ID Code 5-219: 2 yrs from date of malpractice |
ID Code 6-1001: pre-filing screening panel |
ID Code 6-1603: $250,000 on noneconomic (general) damages, adjusted for inflation ID Code 6-1604: punitive damages cap is $250,000 or 3 times compensatory damages |
|
Illinois |
735 IL Stat. 5/13-212: 2 yrs from date of discovery; max. 4 yrs from date of malpractice |
735 IL Stat. 5/2-622: affidavit of merit filed with lawsuit |
N/A |
|
Indiana |
IN Code 34-18-7-1: 2 yrs from date of malpractice |
IN Code 34-18-8-4: pre-filing review panel, unless all parties agree to forego |
IN Code 34-18-14-3: $1,800,000 on total damages |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Iowa |
IA Code 614.1: 2 yrs from date of discovery; max. 6 yrs from date of malpractice |
IA Code 147.140: post-filing certificate of merit |
IA Code 147.136A: $250,000 on noneconomic damages |
|
Kansas |
KS Stat. 60-513: 2 years from date of malpractice or if later, date of discovery; max. 4 yrs from date of malpractice |
KS Stat. 65-4901: post-filing review panel on request of party |
KS Stat. 60-3702: lesser of defendant’s annual gross income or $5,000,000 on punitive damages |
|
Kentucky |
KY Stat. 413.140: 1 yr from date of discovery; max 5 yrs from date of malpractice |
KY Stat. 411.167: certificate of merit filed with lawsuit |
N/A |
|
Louisiana |
LA Stat. 9:5628: 1 yr from date of malpractice or if later, date of discovery; max. 3 yrs from date of malpractice |
LA Stat. 40:1231.8: pre-filing medical review panel |
LA Stat. 40:1231.2: $500,000 on total damages excluding future medical costs |
|
Maine |
ME Stat. 24-2902: 3 yrs from date of malpractice |
ME Stat. 24-2853: pre-filing notice of claim |
ME Stat 18-C-2-807: in malpractice cases causing wrongful death, $1,000,000 on noneconomic (general) damages and $500,000 on punitive damages |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Maryland |
MD Cts & Jud Proc Code 5-109: 5 yrs from date of malpractice or if earlier, 3 yrs from date of discovery |
MD Cts & Jud Proc Code 3-2A-04: pre-filing certificate of merit MD Cts & Jud Proc Code 3-2A-05: pre-filing arbitration |
MD Cts & Jud Proc Code 3-2A-09: $890,000 on noneconomic (general) damages, increasing by $15,000 each Jan. 1. |
|
Massachusetts |
MA Laws 260-4: 3 yrs from date of accrual; max 7 years from date of malpractice |
MA Laws 231-60B: post-filing review tribunal |
MA Laws 231-60H: $500,000 on noneconomic (general) damages unless permanent loss of bodily function or substantial disfigurement |
|
Michigan |
MI Laws 600.5805, 600.5838a: 2 yrs from date of malpractice or if later, 6 mos from date of discovery; max 6 yrs from date of malpractice |
MI Laws 600.2912b: 182-day notice of intent to sue MI Laws 600.2912d: affidavit of merit filed with lawsuit |
MI Laws 600.1483: $280,000/$500,000 (certain catastrophic injuries) on noneconomic (general) damages, adjusted for inflation |
|
Minnesota |
MN Stat 541.076: 4 yrs from date of accrual |
MN Stat 145.682: affidavit of merit filed with lawsuit; post-filing affidavit of testifying experts |
N/A |
|
Mississippi |
MS Code 15-1-36: 2 yrs from date of discovery; max 7 yrs from date of malpractice |
MS Code 15-1-36: 60-day notice of intent to sue MS Code 11-1-58: certificate of consultation filed with lawsuit |
MS Code 11-1-60: $500,000 on noneconomic (general) damages MS Code 11-1-65: sliding scale based on defendant’s net worth on punitive damages |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Missouri |
MO Stat 516.105: 2 yrs from date of malpractice; max 10 yrs from date of malpractice |
MO Stat 538.225: pre-filing affidavit of merit |
MO Stat 538.210: $400,000/$700,000 (catastrophic injury or death), adjusted by 1.7% annually for inflation |
|
Montana |
MT Code 27-2-205: 2 yrs from date of injury or if later, date of discovery; max 5 yrs from date of injury |
MT Code tit. 27, ch. 6: pre-filing claim review panel |
MT Code 25-9-411: $250,000 on noneconomic (general) damages |
|
Nebraska |
NE Stat 44-2828: 2 yrs from date of malpractice or if later, 1 yr from date of discovery; max 10 yrs from date of malpractice |
NE Stat 44-2840: pre-filing medical review panel unless waived by plaintiff |
NE Stat 44-2825: $2,250,000 on all damages |
|
Nevada |
NV Stat 41A.097: 1 yr from date of discovery or if earlier, 3 yrs from date of injury; A.B. 404 (enacted 2023): for injuries on or after 10/1/2023, 2 yrs from date of discovery or if earlier, 3 yrs from date of injury |
NV Stat 41A.071: affidavit of merit filed with lawsuit |
NV Stat 41A.035, as amended by A.B. 404 (enacted 2023): $430,000 on noneconomic (general) damages, increasing by $80,000 every Jan. 1 until 1/1/2028, then annually adjusted for inflation |
|
New Hampshire |
NH Stat 508:4: 3 yrs from date of malpractice or if later, date of discovery |
N/A |
N/A |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
New Jersey |
NJ Stat 2A:14-2: 2 yrs from date of accrual |
NJ Stat 2A:53A-27: post-filing affidavit of merit |
NJ Stat 2A:15-5.14: punitive damages capped at greater of 5 times compensatory damages or $350,000 |
|
New Mexico |
NM Stat 41-5-13: 3 yrs from date of malpractice |
NM Stat 41-5-15: pre-filing medical review panel |
NM Stat 41-5-6: varying caps on most types of damages, depending on type of defendant and when malpractice happened |
|
New York |
NY CPLR Law 214-A: 2 yrs, 6 mos from date of malpractice or last continuous treatment |
NY CPLR Law 3012-A: certificate of merit filed with lawsuit |
N/A |
|
North Carolina |
NC Stat 1-15: 3 yrs from date of malpractice or if later, 1 yr from date of discovery; max 4 yrs from date of malpractice |
N/A |
NC Stat 90-21.19: $500,000 on noneconomic (general) damages, adjusted for inflation every 3rd yr |
|
North Dakota |
ND Code 28-1-18: 2 yrs from date of malpractice or if later, date of discovery; max 6 yrs from date of malpractice |
ND Code 28-1-46: post-filing affidavit of merit |
ND Code 32-42-02: $500,000 on noneconomic (general) damages |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Ohio |
OH Code 2305.113: 1 yr from date of accrual or if later, date of discovery; max 4 yrs from date of malpractice |
OH Code 2323.451: affidavit of merit filed with lawsuit; |
OH Code 2323.43: noneconomic (general) damages capped at greater of $250,000 or 3 times economic (special) damages, to max of $350,000 per plaintiff or $500,000 per occurrence; higher limits for certain catastrophic injuries |
|
Oklahoma |
OK Stat 76-18: 2 yrs from date of discovery |
N/A |
N/A |
|
Oregon |
OR Stat 12.110: 2 yrs from date of discovery; max 5 yrs from date of malpractice |
N/A |
OR Stat 31.710: $500,000 on noneconomic (general) damages in wrongful death cases |
|
Pennsylvania |
42 PA Stat 5524: 2 yrs from date of injury or if later, date of discovery |
231 PA Code Rule 1042.3: certificate of merit filed with lawsuit or within 60 days after |
40 PA Stat 1303.505: punitive damages capped at 200% of compensatory damages |
|
Rhode Island |
RI Laws 9-1-14.1: 3 yrs from date of malpractice or if later, date of discovery |
N/A |
N/A |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
South Carolina |
SC Code 15-3-545: 3 yrs from date of malpractice or if later, date of discovery; max 6 yrs from date of malpractice |
SC Code 15-79-125: pre-filing notice of intent to sue SC Code 15-36-100: affidavit of merit filed with lawsuit |
SC Code 15-32-220: $350,000 on noneconomic (general) damages SC Code 15-32-530: punitive damages at greater of 3 times compensatory damages or $500,000; both caps adjusted for inflation |
|
South Dakota |
SD Laws 15-2-14.1: 2 yrs from date of malpractice |
N/A |
SD Laws 21-3-11: $500,000 on noneconomic (general) damages |
|
Tennessee |
TN Code 29-26-116: 1 yr from date of malpractice or if later, date of discovery; max 3 yrs from date of malpractice |
TN Code 29-26-121: 60-day pre-filing notice TN Code 29-26-122: certificate of good faith (merit) filed with lawsuit |
TN Code 29-39-102: $750,000/$1,000,000 (certain catastrophic injuries) on noneconomic (general) damages TN Code 29-39-104: punitive damages at greater of 2 times compensatory damages or $500,000 |
|
Texas |
TX CPR 74.251: 2 yrs from date of malpractice or if later, date treatment ended; max 10 yrs from date of malpractice |
TX CPR 74.051: 60-day pre-filing notice TX CPR 74.351: post-filing expert witness report |
TX CPR 74.301: $250,000 on noneconomic (general) damages TX CPR 74.303: $500,000 on all damages except medical expenses in wrongful death cases, adjusted for inflation |
|
Utah |
UT Code 78B-3.404: 2 yrs from date of discovery; max 4 yrs from date of malpractice |
UT Code 78B-3.412: 90-day notice of intent to sue UT Code 78B-3.416: pre-filing review panel |
UT Code 78B-3.410: $450,000 on noneconomic (general) damages, adjusted for inflation |
|
State |
Statute of Limitations |
Filing Requirements |
Damage Caps |
|
Vermont |
12 VT Stat 521: 3 yrs from date of malpractice or if later, 2 yrs from date of discovery; max 7 yrs from date of malpractice |
12 VT Stat 1042: certificate of merit filed with lawsuit |
N/A |
|
Virginia |
VA Code 8.01-243: 2 yrs from date of accrual |
VA Code 8.01-20.1: filing lawsuit deemed certification of expert review |
VA Code 8.01-581.15: $2,600,000 on all damages; amount adjusted annually |
|
Washington |
WA Code 4.16.350: 3 yrs from date of malpractice or if later, 1 yr from date of discovery |
WA Code 7.70.100: post-filing mandatory mediation in most cases |
N/A |
|
West Virginia |
WV Code 55-7B-4: 2 yrs from date of injury or if later, date of discovery; max 10 yrs from date of injury; shorter limits for cases against certain health care facilities |
WV Code 55-7B-6: 30-day notice of intent to sue, which must include a certificate of merit |
WV Code 55-7B-8: $250,000/$500,000 (certain catastrophic injuries or death) on noneconomic (general) damages; adjusted annually for inflation |
|
Wisconsin |
WI Stat 893.55: 3 yrs from date of injury or if later, 1 yr from date of discovery; max 5 yrs from date of malpractice |
WI Stat 893.55: $750,000 on noneconomic (general) damages; other limits apply in cases involving wrongful death |
|
|
Wyoming |
WY Stat 1-3-107: 2 yrs from date of malpractice or if later, date of discovery |
N/A |
N/A |
A Word of Caution: Get Help With Your Case
We close with a word of caution. There are a handful of cases that you might be able to handle on your own, without legal counsel. A simple, uncontested car accident case, where the other side’s legal responsibility is clear and your injuries are minor, is a good example.
A medical malpractice case—no matter how simple or “open and shut” you think it might be—isn’t one of those cases. Lots of lawyers, even those who handle other kinds of personal injury cases, won’t touch a medical malpractice case. They’re simply too difficult, legally and technically, and too expensive for most lawyers to accept.
If you think you have a medical malpractice case, your first call should be to an experienced medical malpractice lawyer. Make that call sooner rather than later, because one of the enemies of a malpractice case is time. The only way to know if your claim might be viable is to have it reviewed by an attorney who knows what makes malpractice cases tick.