If a family believes a healthcare provider’s actions may have contributed to the child’s cerebral palsy (CP), they may also need to understand how much time they have to pursue a medical malpractice claim.
There is no single deadline for filing a cerebral palsy medical malpractice lawsuit. The time limit depends on, among other factors, the state law that applies to the claim and the circumstances of the child’s injury and medical care.
Factors such as when the injury was discovered, whether the state allows additional time for minors, whether a statute of repose applies, and whether a government or public healthcare facility is involved may affect the filing deadline.
Parents should not assume they have until their child turns 18 to take legal action. Even when a child is very young or cerebral palsy has not yet been diagnosed, it can be important to determine the applicable deadline as soon as there is reason to question whether a preventable birth injury may have occurred.
What is a statute of limitations?
A statute of limitations sets the period within which a lawsuit must be filed. Once that deadline expires, a family may lose the ability to pursue a claim, even when the child’s injuries are serious.
Medical malpractice deadlines are primarily governed by state law, so there is no single nationwide filing period for cerebral palsy cases. The applicable time limit may also depend on factors such as the child’s age, when the injury was discovered, and the type of healthcare provider involved. The time limit may also depend on the particular defendant to be sued.
Understanding the statute of limitations is only the first step. The next question is when the filing period begins, which can vary depending on the circumstances and the law governing the claim.
When does the clock begin?
The filing period does not always begin on the same date in every medical malpractice case. Depending on the jurisdiction, the filing period may begin on the date of the alleged malpractice, the date of the injury, the date the injury was discovered or reasonably should have been discovered, or another legally defined event.
Some states also impose a statute of repose. Unlike a statute of limitations, which generally runs from a specified starting point, a statute of repose can establish an outside deadline tied to the underlying medical event. It may limit how long a claim can be brought even when the injury was discovered later.
Because these rules vary by state, identifying the relevant dates is an important part of determining how much time remains to file a claim. Missing an applicable deadline can prevent a claim from being pursued, so determining which deadline applies and when it began to run can be critical.
Are the deadlines different because the injured person is a child?
They can be. States take different approaches to medical malpractice claims involving minors, and the rules may differ from those that apply to adults.
Some states provide additional time for a claim based on the child’s age. Others impose specific deadlines or exceptions for medical malpractice claims involving minors or birth injuries. The amount of additional time, when it applies, and how the deadline is calculated vary by state.
The applicable state law and the specific facts of the case need to be reviewed to determine the actual deadline.
What if cerebral palsy was not diagnosed immediately?
Cerebral palsy is not always diagnosed at birth. Some children may show developmental concerns before receiving a formal diagnosis, while others may not be diagnosed until later in childhood. The National Institute of Neurological Disorders and Stroke notes that most children with cerebral palsy are diagnosed during the first two years of life, although mild cases may be diagnosed later.
A later diagnosis does not necessarily mean that the filing deadline starts on the date cerebral palsy is diagnosed. The applicable rule depends on the state law governing the claim and the circumstances surrounding the child’s injury.
Parents should consider both the child’s medical history and the legal deadlines that may apply. Waiting for a formal cerebral palsy diagnosis before looking into the filing deadline could create problems if the applicable time limit began earlier.
What if I only recently learned malpractice may have occurred?
Learning about a possible medical error years after a child’s birth does not necessarily mean the filing deadline begins on the date the family first suspects malpractice.
A family may initially be told that a child’s neurological condition resulted from an unavoidable complication. Later, a review of the medical records may raise questions about fetal monitoring, a delayed C-section, infection, or another aspect of the care provided during pregnancy or delivery.
Some states recognize discovery rules that may affect when the filing period begins, while others place limits on how long a medical malpractice claim can remain open. The effect of a later discovery depends on the law governing the claim and the specific circumstances involved.
For that reason, families who recently learned that medical care may have contributed to their child’s cerebral palsy should have the applicable deadlines reviewed promptly rather than assuming that the date they discovered the possible connection determines when the filing period begins.
Can claims involving public hospitals have different requirements?
A claim involving a government-run hospital, public healthcare facility, or government employee may be subject to rules that do not apply to claims against private healthcare providers.
Depending on the jurisdiction and the defendant involved, a family may need to meet additional requirements, such as providing advance notice of the claim or following specific procedures before filing a lawsuit. Separate rules may also apply to claims against federal, state, or local government entities.
These requirements can affect how and when a claim must be pursued. Identifying the healthcare providers and facilities involved early can help determine which deadlines and procedures may apply.
Why investigate before the legal deadline approaches
The filing deadline is only one reason to begin investigating a potential cerebral palsy malpractice claim early. A medical malpractice case can involve extensive records and complex questions about what happened before, during, and after the child’s birth.
Attorneys may need time to obtain and review medical records, identify the healthcare providers involved, consult qualified medical professionals, assess potential causes of the child’s injury, and determine whether the evidence supports a malpractice claim. They may also need to identify the appropriate defendants and address any procedural requirements that apply to the case.
Starting the investigation early gives the legal team more time to gather the necessary information and address questions that may arise during the review.
What information can help determine my deadline?
Our attorneys will need to establish which law applies and identify the dates that may affect the filing period. Basic information about the child’s birth, medical care, diagnosis, and the healthcare providers involved can help with that initial review.
Useful information may include:
- The state where the relevant medical care occurred
- The child’s date of birth
- The hospitals and healthcare providers involved
- When signs of neurological injury or developmental concerns first appeared
- When cerebral palsy or another neurological condition was diagnosed
- Whether HIE or another birth-related brain injury was diagnosed
- Whether a government or public healthcare facility was involved
Additional facts may become important once the applicable law and circumstances of the potential claim have been identified.
What if I think the deadline has already passed?
Do not assume that a claim is automatically barred without having the applicable law reviewed. Rules involving minors, discovery, tolling, statutes of repose, and other exceptions can affect when a filing deadline expires.
An attorney may need to review the relevant dates, medical history, and procedural requirements before determining whether a claim can still be pursued.
Families should not rely on the possibility that an exception will extend the deadline, however. If there is a concern that the filing period may have expired, getting the applicable law reviewed promptly can help clarify what options, if any, remain.
How can I find out how much time my family has?
Finding out how much time remains can give your family a clearer understanding of its legal options while the underlying medical evidence is investigated.
The first step is to determine which law governs the potential claim and how that law applies to the specific facts. Our cerebral palsy lawyers can review the relevant dates, identify any rules that may affect the filing period, and determine what deadline may apply.
Contact our firm today for your confidential consultation.
Clients are not responsible for legal fees or expenses unless a financial recovery is obtained.
