Deadline To File Malpractice Lawsuit

Deadline To File Malpractice Lawsuit

Deadline To File Malpractice LawsuitIn New Mexico, the deadline to file a medical malpractice lawsuit is three years according to the personal injury statute of limitations. But there are exceptions which can delay this three year statute of limitations. The 3 year deadline applies to medical malpractice cases involving non-qualified healthcare providers.

State and federal laws require that malpractice lawsuits be brought within a certain time frame depending on the defendant or type of claim.  Each claim and defendant has a unique timeline which the patient or representative must file the lawsuit.

A non-qualified healthcare doctor or facility is one which has not sought to participate in the Patient’s Compensation Fund.  In the past (although this is changing and major hospitals like Presbyterian are now considered Qualified), hospitals and other healthcare facilities have not opted to participate in the Patient’s Compensation Fund.  If the healthcare provider is not qualified, then the ordinary three-year personal injury statute of limitations applies to the case. There are also exceptions to the three-year statute of limitations which toll or delay the three-year statute. 

The first exception in a medical malpractice case is a tolling for minors or those who are incapacitated. If a minor is the victim of malpractice by a non-qualified doctor, the minor has until their ninetieth birthday to file suit unless the three-year statute of limitations has not expired at the time of the minor’s ninetieth birthday. In other words, “[a] minor’s lawsuit for personal injury is not barred until one year after the minor reaches the age of majority or until three years after the accident–whichever computation of time gives the injured minor the most time to act.”  A person who is incapacitated must file within one year of no longer being incapacitated.  An incapacity is not defined by the statute, but generally would be a person who does not have the capacity to file a lawsuit on their own due to physical or mental medical conditions.  For example, a person in a coma would have the deadline to file a lawsuit extended. 

The second exception is the discovery rule.  The discovery rule provides that the statute of limitations begins when the patient knows or “with reasonable diligence should have known of the injury and its cause.”  If a patient, for example, had imagining or tests performed that showed the patient had cancer, but that information was never transmitted to the patient and the patient is informed that they have cancer four years later, then the statute of limitations would not start running until the patient discovers the cancer.  Importantly, however, the discovery rule does not apply to a wrongful death that resulted from malpractice.

The third exception is fraudulent concealment.  Fraudulent concealment tolls the statute of limitations where the defendant (or doctor) prevented the patient from obtaining the knowledge of the malpractice. To delay the statute of limitations under the fraudulent concealment doctrine, the patient must prove: “(1) that the physician knew of the alleged wrongful act and concealed it from the patient or had material information pertinent to its discovery which he failed to disclose, and (2) that the patient did not know, or could not have known through the exercise of reasonable diligence of his cause of action within the statutory period.”  Silence by the negligent doctor can be fraudulent concealment if the “physician breaches his fiduciary duty to disclose material information concerning a patient’s treatment.”  The doctrine applies in wrongful death cases as well.

Since the deadline to file a malpractice suit is a set period of time unless you meet an exception you must be diligent in filing a head of time as to not lose out on a potential case. If you believe you meet one of these exceptions reach out to one of our attorneys so that they can have the deadline extended for you. Here at the Davis Kelin Law Firm we have had hundreds of inquires and hundreds of cases come through our office. Many individuals do not meet the statue of limitations time period and are no longer able to file a case. Don’t let that happen to you. Reach out to a lawyer today at (505) 242-7200. We would be happy to assist you in your medical malpractice case.

 

Deadline To File Malpractice Lawsuit

Davis Kelin Law Firm

Author Davis Kelin Law Firm

More posts by Davis Kelin Law Firm

Leave a Reply