- Malpractice claims cover both cases where the injury sustained resulted from the negligence of a medical professional as well as harm suffered as a result of the negligence of other types of professional providers such as accountants and attorneys. The limitations period for professional malpractice varies from state to state. In California, the limitations period for medical malpractice actions is three years from the date of injury, whereas in Indiana, it is two years. In addition, many jurisdictions have established separate and distinct statute of limitations periods for malpractice actions resulting from the negligence of non-medical professionals.
- The statute of limitations clock starts to run on the date the cause of action for malpractice accrued, which means the date on which the plaintiff sustained the injury. The clock stops on the date a complaint is filed in court.
- Many jurisdictions have a provision that tolls, or stops the clock, on the statute of limitations in circumstances where the injury sustained by a plaintiff may not be easily detected at the time of its occurrence. A common example would be a situation where a sponge is left inside a person after undergoing surgery. The "discovery rule" tolls the statute of limitations until such time as the plaintiff actually discovers the harm or until such time as he should have, with the exercise of reasonable diligence, discovered the injury sustained.
- A person who is a defendant in a malpractice action must affirmatively raise the defense of the statute of limitations. Pursuant to the rules of civil procedure in most jurisdictions, this is accomplished by raising the defense in the answer to the plaintiff's complaint when it is filed in court. A defendant who properly and timely raises the statute of limitations issue can request that the court dismiss the complaint. Once dismissed, the plaintiff has no further legal remedy against the defendant.
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