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Can You Sue for Medical Malpractice Years After Treatment?

Posted in Medical Malpractice on February 8, 2021

Medical malpractice is a serious wrongdoing that injures and kills thousands of patients each year. In West Virginia, injured patients have the right to hold negligent physicians accountable for their actions. If a health care practitioner wronged you, you only have a limited amount of time to sue for medical malpractice. 

Although in some circumstances you may be able to file a claim years after treatment, in others, your deadline may be fast approaching. Consult with a medical malpractice attorney as soon as possible to make sure you understand – and do not miss – your specific deadline to file.

What is the Statute of Limitations on Most Medical Malpractice Claims?

West Virginia Code Section 55-7B-4 states that all legal actions for medical malpractice against a health care provider or employee must be commenced within two years of the date of the injury. It also has a statute of repose of no more than 10 years from the date of the injury. A statute of repose is an overarching time limit on a plaintiff’s right to bring a lawsuit, regardless of when the cause of action accrued. 

For the most part, you will have no more than two years after the date of the malpractice to pursue compensation. This means you cannot wait years after treatment to file. Even if an exception to the rule applies to your case, you must act within 10 years. Otherwise, you can lose the right to file your claim and pursue compensation for good.

The Discovery Rule

West Virginia’s statute of limitations on medical malpractice claims is extended to two years from the date the victim discovers, or should have discovered through reasonable diligence, his or her injury if this date differs from the date of the accrual of the cause of action. This is what is known as the discovery rule.

If you do not discover the injury or illness you suffered due to a health care practitioner’s professional negligence until days, weeks or even years later, you will have two years from the date of discovering your injury to file, rather than the date of the actual malpractice. 

With the discovery rule, you may be able to file a medical malpractice lawsuit in West Virginia years after the treatment or care that gave you the injury, or years after your final treatment for the injury in question. Keep the 10-year statute of repose in mind, however, as it still applies to these cases. 

Exception for Child Victims

Another important exception to keep in mind in West Virginia is the exclusion of children who were under the age of 10 when the alleged act of malpractice injured them. When medical malpractice injures a child under the age of 10, that child’s family has 2 years from the date of the injury or until the claimant turns 12 to sue for medical malpractice, whichever is longer. This exception could allow the child’s family to file a lawsuit years after the child’s treatment, depending on the case.

Why It Is Important to Act Quickly

Even if you know you are well within your statute of limitations to file a medical malpractice lawsuit in West Virginia, do not wait to bring your legal claim. Acting quickly to exercise your legal rights can allow you to build a stronger case by using evidence that has not yet been destroyed or details that are still fresh in the minds of eyewitnesses. 

Acting quickly can also guarantee you do not accidentally miss your statute of limitations – a mistake that could bar you and your family permanently from financial recovery. Although you may have the right to sue for medical malpractice years after treatment, waiting may not be in your best interest. Speak to a West Virginia injury lawyer near you right away for more information about your deadline to file.