There are many things that must happen after a serious medical mistake leads to long-term or permanent harm. An injured party may need to seek immediate medical attention and then participate in extended therapy or rehabilitation. If the harm is severe enough, it may require an assisted living facility. In the worst case scenario, a person may die and his or her family has to deal with the ramifications of the loss. All of these things take time, but the problem is that time is limited if it becomes necessary to file a legal action in order to obtain the necessary compensation.
Alaska Medical Malpractice Statute of Limitations
The statute of limitations sets forth the time limit in which a case may be brought. These time limits vary from state to state and are absolute rules, meaning that if a person does not bring an action within the allocated time permitted, he forever is barred from pursuing this cause of action. It does not matter how unfair this result may for the injured party or his family. Although there are different time periods depending on the nature of the case, under the current law in Alaska, a person has two years in which to bring his medical malpractice case from the date on which the act or omission occurred. Of course, this requires that the person knows about the negligent act that led to the injury. There are qualifications to the general rule that account for a person’s inability to discover the source of the harm or lack of capacity to bring the legal action, discussed below.
Before discussing the exceptions to the rule, it is important for a victim of medical malpractice to really understand what the statute of limitations means for him. If a case is not filed within two years of the injury, he is completely prevented from seeking damages through a legal action. It also is critical to know that this does not mean a person can walk into an attorney’s office after one year and 364 days and be able to file an action. There are many things that must be done before a medical malpractice case is filed and these steps take time. They include:
- A thorough investigation into the facts and circumstances of the case – The initial fact analysis requires a review of medical records and many other documents, as well as witnesses. Medical professionals are known to “circle the wagons” when one of their colleagues has been accused of malpractice, so the gathering of evidence may take time;
- Establishment of a good faith basis for bringing the action – In many cases, a person must have a medical expert willing to testify to the act or omission that led to the injury and that the underlying cause was negligence before a case even can be filed; and
- Preparation of the initial filing – This includes ensuring that the case is being brought in the right forum. If a case is filed with the wrong court, it may be thrown out. If the statute of limitations has run, it will not be possible to re-file without intervention by the court.
The longer it takes for a person to consult with an experienced medical malpractice attorney, the harder it is to find some of the crucial information necessary to demonstrate liability.
Discovery of the Wrongdoing
There are exceptions that extend the two-year filing limitation. The exception that most commonly impacts a person who has been harmed as the result of a preventable medical mistake is the discovery rule. A person has to know about the harm, or have the facts that would inform a reasonable person about the mistake under the same circumstances. The clock does not begin to run until the person discovers or could have discovered the negligence. Many times, a person who has had a surgical implement left in the body that leads to serious problems in the future may bring an action more than two years after the act of negligence, specifically including the failure to remove an item such as a sponge or clamp from the body. Even the absolute ten-year limit discussed below does not apply if the object is not discovered within that time period.
Ability to Bring the Action
There are certain equitable exceptions that apply to filing limitations. If the defendant left the jurisdiction then there may be an extension of time in which the case may be brought, but this depends on the circumstances of the specific case. In addition, if the victim of the medical malpractice lacks the mental capacity to bring an action, then the time limit in which to file the case may be extended.
Statute of Repose
Although there are exceptions made for people to bring a lawsuit beyond the strict two-year time period, there is an absolute limit imposed under Alaskan law for the commencement of legal actions. A person has ten years from the time of the act or omission to file a case, even if the person did not discover the cause of the harm for nine years. One of the reasons for this limit is that evidence deteriorates or is destroyed and memories fade. However, if the harm was caused by an intentional act or it can be proven that there was gross negligence, a standard beyond that of common negligence, then a case can be brought after ten years. In addition, if there were affirmative steps taken to conceal the harmful act and prevent the discovery of the negligence, then the time limit may be extended.
Medical Malpractice and Children
When it is a child under the age of eight who is harmed as the result of a doctor or other medical professional’s mistake, the time to bring an action does not start to tick down until the child turns eight years of age. However, it is important to remember that the statute of repose applies in this situation. Therefore, a child who was injured at birth has until his tenth birthday to file a legal claim against the negligent parties. If the parents or the guardian of the minor child could not have discovered the negligent act or omission, then this limit does not apply.
Stern Law, PLLC Advocates Aggressively for Medical Malpractice Victims
There are many factors that go into determining whether or not a malpractice case can be brought, including whether the applicable statute of limitations permits the filing. At Stern Law, PLLC, our attorney has the experience and resources to provide clear and concise legal options for our clients. For more than 30 years, we have advocated on behalf of our clients to get them the compensation that they need to deal with the harm that they suffered. In order to provide answers to everyone who may have suffered from medical malpractice, we have people available to respond to questions 24 hours a day, seven days a week. Call us at 1-844-808-7529 or fill out an online contact form in order to learn how we can help you get through this difficult time.