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Sunday, 18 April 2010 06:16

Statutes of Limitations

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A “statute of limitation” is a time frame that defines the length of time an individual has to file a claim. The time limit begins when an injury occurs, or is discovered, and concludes on the latest date the injured person can file suit. These time limits vary from state to state, and depend on the type of claim to be filed. The time frame of the statute of limitations usually begins when the injury or wrongful act occurs. However, some states may allow a claim to proceed if the wrongdoing or injury was not discovered until a later date. The time frame would then begin on the date of discovery.

The Statute of Limitation Laws serve two main purposes:

 

  • To protect any potential defendants from being forever at risk for a lawsuit
  • To ensure that legitimate lawsuits are filed while evidence and memories are still recent

 

It is important to speak with an attorney as soon as you think you have a valid claim. In addition to preserving your rights and protecting your claim in court, an attorney may also help to preserve evidence, locate witnesses, and perform other tasks in a timely manner to help you win your case.

The date at which the Statute of Limitations begins to run is of the utmost importance. Once the Statute of Limitations has run, no lawsuit, legitimate or otherwise, can be filed. If a suit has not been filed within the requisite period a later suit will not be allowed. If the lawsuit is not filed before the passage of the Statute of Limitations deadline, it will be subject to dismissal by the court. It is, therefore, extremely important that you find out the deadline for your case and keep it in mind when negotiating.

If you believe that the Statute of Limitations may have passed in your case, you should consult an attorney immediately. Some exceptions exist that your attorney may be able to inform you about.

If you file a complaint on time, a statute of limitations has nothing to do with how long it takes for a case to conclude.

If you feel that you have a valid claim, be sure and contact an attorney in a timely manner. If you contact an attorney and inform them that your statute of limitations runs out tomorrow, next week, or even next month, they may decline your case simply based on time. An attorney will most likely not file a suit on your behalf if s/he does not have adequate time to prepare your case, or even to research your case to determine if you have grounds for a claim.

Depending on the type of lawsuit, and the state in which it is filed, the Statute of Limitations can be any number of years. Every state has its own time limits, and even within a state the period of time in which you must file a lawsuit varies according to the type of claim. Occasionally theses limits are changed by the legislature. To be sure of your time limit, check the law for your state, or ask a personal injury attorney.

Once you have ascertained what statute of limitations applies to your case, your next step is to determine what date the statute actually begins.

The period of time during which a lawsuit must be filed usually begins with the date of harm. However, a huge exception to this general rule exists. There are instances, however, in which an injury is not discovered for months or years after it occurs. In such situations, statutes of limitations may begin the clock ticking either on the "date of discovery" of the harm, or the date on which the plaintiff "should have discovered" the harm. This refers to the date when a judge considers it fair to say that the plaintiff should have known about the harm, whether or not the plaintiff actually knew about it.

These three possible situations are explained below:

Earliest Detection: Date injury or wrongdoing OCCURED.

Example: On January 1, a doctor performs an appendix removal operation on Tony, but mistakenly cuts and has to remove Tony's spleen as well. The doctor tells Tony of the mistake as soon as he wakes up. Tony's time period for suing the doctor begins to run on January 1, since the harm occurred on that date and Tony was informed of the mistake. If a one-year statute of limitations for medical malpractice applied to Tony’s case, he'd have one year from January 1 to file a lawsuit against the doctor.

Later Detection: Date injury or wrongdoing SHOULD HAVE been discovered

Example: Same case, except the doctor does not tell Tony about the surgical mistake. Tony is in constant pain following the January 1 surgery. A month later, on February 1, Tony talks to another doctor who tells him that he should not be in pain and that he should immediately come in to have it checked out. Tony delays going to the doctor until June 1 of the same year, at which time he finds out that his spleen had been removed on January 1. In this situation, Tony's time period for suing the doctor probably begins to run on or shortly after February 1, because the pain coupled with the second doctor's advice determines when Tony should reasonably have discovered the harm.

Latest Detection: Date injury or wrongdoing WAS discovered

Example: Same case, except that Tony suffers no unusual after-effects following the January 1 surgery. Tony is unaware that anything went wrong with the surgery until June 1 of the same year, when an x-ray during a routine medical checkup reveals that his spleen was also removed. In this situation, since Tony did not discover and could not reasonably have discovered the harm until June 1, most states would measure Tony's time to sue from June 1.

Once you have determined the date your claim begins, and applied the statute of limitation, you can determine a deadline by which you must file your claim. Be sure to make a note of this date so that even if you put off filing your claim, you will still be able to do so before the time limit runs out

 

Read 1824 times Last modified on Sunday, 18 April 2010 02:19
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