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Law book on medical malpractice next to Lady Justice.

How Long Do I Have to File a Medical Malpractice Case?

Whenever someone contacts our office about a medical malpractice case (or any personal injury case), one of the first things that we determine is how long it has been since the injury. This is a very important question because we are trying to determine whether a case is going to be filed within the statute of limitations or if too much time has lapsed.

A statute of limitations is the time frame in which a case can be filed. If a case is brought within the statute of limitations, then the case can move forward. If the case is brought outside of the statute of limitations, though, then that means that the case cannot move forward. Rather, it will be dismissed and there is likely no hope of recovery. In Mississippi, there is not a one-size-fits-all approach to determining a statute of limitations. Rather, a lawyer must look to the specifics of the case and determine which statute of limitations applies, because some statutes can be shorter than others. For example, a claim against a governmental entity, such as a town or police department, usually must be brought within one year of the alleged injury, whereas general negligence cases must usually be brought within three years.

Medical malpractice is its own unique animal. In Mississippi, a medical malpractice action must be filed within two years “from the date of the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.” This means that a person has two years from either the injury or when they might have first learned of the act causing their injury to file their claim. Sounds simple, right? Unfortunately, it’s not as simple as it sounds.

Let’s suppose that a person undergoes a medical procedure on January 1, 2019. They have complications and have ongoing pain following the procedure. One year after their surgery, on January 1, 2020, they are still having pain and go see a different doctor. When they go see the different doctor, they learn that the first doctor left a surgical sponge in the person, cut something wrong, or goofed up the surgery. The person waits to go see a lawyer until January 30, 2021. Did the person wait too long, and is the claim outside of the statute of limitations? It’s complicated. Case law from the Mississippi Supreme Court and Court of Appeals says that it could have started when the person knew of the injury but failed to request medical records, or it could have started if the person just had general complications and then learned that the first doctor goofed up the surgery. Other case law says that if the person did not have any complications or issues until sometime later, then requested medical records, and THEN learned that the first doctor goofed up the procedure, then the statute would not start until the person learned of the wrongful conduct. See how it can get really sticky really quickly?

The moral of the story is simple: the second that you feel that something is wrong, see a doctor, ask questions, and request all of your medical records. The longer you wait to do all of that, along with speaking to a lawyer, the harder it is going to be to make sure that your case is filed within the statute of limitations. Always remember that time favors defendants, never those that are injured.