Losing a loved one is extremely difficult, especially when it is unexpected.
Some cases of medical malpractice cause wrongful death. This type of medical malpractice gives rise to two distinct cases of action:
- A “survival action” medical malpractice claim for the victim’s personal pain and suffering prior to death
- A “wrongful death” claim for the loss suffered by the victim’s spouse and next of kin after the victim’s death
We discussed in a previous post about the statute of limitations for medical malpractice, which is one year after the cause of action accrues. You can read about the statute of limitations more in depth by visiting that blog post and see an example to better understand the concept. But, if medical malpractice leads to the wrongful death of a loved one, a wrongful death action is subject to a two year statute of limitations,
If wrongful death comes about as the result of medical malpractice, there is a two year statute of limitations.
This means that it is possible that a wrongful death action may still be available even if the underlying medical malpractice action is time-barred.
Discovery Rule and Wrongful Death
There is also an additional “discovery rule” that can extend the two year wrongful death statute of limitations. Under this, the two year period to file a lawsuit starts when the plaintiff discovers, or in the exercise of a reasonable care should have discovered, that a wrongful death has occurred. This means that the start of the limitations period is delayed until triggered by a “cognizable event” that alerts the plaintiff of the potential for a wrongful death claim.
The discovery rule is meant to prevent unfairness that would result if the statute of limitations was rigidly followed. This would occur in cases in which wrongful death action occurred but the victim’s survivors were not immediately aware that it was wrongful death.
If you believe that your loved one’s death was due to medical malpractice, it is important to hire a lawyer as soon as possible. Cases like this can be confusing for those who are not experienced in the practice area and knowledgeable of the countless limitations and rules surrounding the claims. Call our lawyers at 800.637.8170 to review your loved one’s case, receive a free case evaluation, and receive guidance on the next steps that you should take.