If an malpractice error were to result in a lawsuit, what would determine how long the patient would have to file a claim?
The statute of limitations in the State where the negligence occurred would determine the time frame, but be careful. This calculation is very difficult in medical malpractice cases and should be done by an attorney right away.
Professional Malpractice: Medical malpractice actions must be commenced within three years of the act or omission giving rise to the injury, or within two years of the date of discovery, to a maximum of four years following the date of the act or omission. Medical malpractice actions for objects left inside the body may be commenced within one year of the date of discovery, to a maximum of ten years after the date of the act giving rise to the injury.
Sometimes it is not reasonably possible for a person to discover the cause of an injury, or even to know that an injury has occurred, until considerably after the act which causes the injury. For example, an error in the drafting of a will might not be noticed until the will is being executed, decades after it was drafted, or a financial planner's embezzlement might not be noticed for years due to the issuance of false statements of account.
When it applies, the "discovery rule" permits a suit to be filed within a certain period of time after the injury is discovered, or reasonably should have been discovered. The discovery rule does not apply to all civil injuries, and sometimes the period of time for bringing a claim post-discovery can be short, so it is important to seek legal assistance quickly in the event of the late discovery of an injury.
In addition to late discovery, it may be possible to avoid the harsh result of a statute of limitation by arguing that the statute has been "tolled". When it is said that a statute is "tolled", it means that something has stopped the statute from running for a period of time. Typical reasons for tolling a statute of limitations include minority (the victim of the injury was a minor at the time the injury occurred), mental incompetence (the victim of the injury was not mentally competent at the time the injury occurred), and the defendant's bankruptcy (the "automatic stay" in bankruptcy ordinarily tolls the statute of limitations until such time as the bankruptcy is resolved or the stay is lifted).
Under North Carolina law, a minor must file suit within three years of his or her eighteenth birthday, except in cases of medical malpractice where suit must be filed by the minor's nineteenth birthday.