How long can you wait before filing a medical malpractice lawsuit?
In November of 2005 a woman in Nevada, Megan Hamilton, underwent a knee surgery. A few weeks later, she told her doctor she was in pain. The doctor placed Ms. Hamilton in the hospital on antibiotics for the infection in her knee which turned out to be very serious. An infectious disease doctor was called to treat Ms. Hamilton’s knee. After leaving the hospital, both the infectious disease doctor and the knee surgeon continued to treat her. In May, 2006 the knee surgeon performed an additional procedure on Ms. Hamilton to remove surgical implants that were harboring the infection. The infection persisted and the doctor continued to treat her throughout August of 2006. In December 2006 and April of 2009, Ms. Hamilton underwent two more surgeries by a different knee surgeon. The last surgery revealed that certain surgical devices from the original surgery still in Ms. Hamilton’s knee continued to harbor the infection the entire time.
In April of 2010 Ms. Hamilton filed a lawsuit against her original doctor claiming that his failure to remove the surgical devices during the 2006 surgery was an act of malpractice falling below the standard of care and causing her damages. More than three years had gone by since the original doctor’s last treatment of Ms. Hamilton.
The doctor filed a motion to dismiss the lawsuit arguing that Ms. Hamilton’s claims were time barred by the three year statute of limitation. Ms. Hamilton argued that the claim was timely because she did not know until the 2009 surgery that the surgical devices from the 2006 surgery were the cause of her injuries.
The Nevada Supreme Court analyzed this issue of first impression to outline when the statute of limitation accrues for a medical malpractice claim. The statute governing the action states that an action for malpractice cannot be commenced more than 3 years after the date of injury or 1 year after the “plaintiff discovers, or through the use of reasonable diligence should have discovered the injury, whichever occurs first.” The question that was to be decided was when the “injury” occurred for purposes of bringing a claim.
The Nevada statute of limitation for medical malpractice is twofold: it requires an injured party to commence a lawsuit within one year of discovery the injury or within three years of the date of injury. The three year limitation period does not require the injured party be aware of the injury, and the Nevada Supreme Court declined to read it that way, despite Hamilton’s urging.
The Nevada Court stated that the three year limitation period was designed to put an end to potential litigation regardless of when the injured party becomes aware of the alleged malpractice. The injured party does not have to be aware of the cause of the injury for the limitation period to begin to run.
In Ms. Hamilton’s case, the Court found that she had an appreciable injury in 2006, so regardless of whether she understood the reason for the injury to be malpractice at that time, the statute of limitations began to run. Accordingly, her lawsuit was dismissed for being filed too late.
Because the Nevada laws are so strict as to when a person can file a medical malpractice action, it’s best to consult an attorney immediately when you notice an appreciable injury so it can be determined in a timely manner whether you have a malpractice claim or not. Our attorneys are Clear Counsel Law Group are knowledgeable about medical malpractice and offer complimentary consultations if you think you have a medical malpractice claim.