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He Who Hesitates, Claim May Be Lost

On Behalf of | Feb 7, 2011 | Medical Malpractice

He Who Hesitates, Claim May Be Lost

One of the many things that frequently comes to my attention when discussing claims with potential clients is that most people are not aware that they only have a limited amount of time to bring a law suit. Some people are aware that a limitation does exist, but believe they have a much longer time in which to file their claim than they actually do. Because no claim can be filed after the period of limitations has run, hesitating to investigate or bring a claim will result in the claim being lost forever.

While determining the actual time in which a lawsuit must be filed is a complicated undertaking which should only be done by a trained legal professional, this basic and very general overview, is intended to offer some greater insight into the need for prompt action on potential legal actions.

Under Michigan Law, there is a limited time in which an individual can bring a claim for damages. This time frame is generally referred to as the statute of limitations. The statute of limitations varies depending upon the type of claim being brought. Contrary to what many prospective clients believe, the statute of limitations on medical malpractice claims and general negligence claims are relatively short. A medical malpractice claim generally must be filed two years from the date of the negligent treatment. MCL 600.5838a or within six months from the date a person knows of reasonably should have known he or she has a claim, whichever is later. The six month discovery rule, however, cannot be used to file a claim more than six years after the date of the negligent treatment.

Most surprising to potential clients is that a minor does not have until he or she is 19 to bring a medical malpractice claim. Under Michigan law if a medical malpractice claim arises before a child turns eight, his/her claim must be filed on or before the child’s tenth birthday. If the medical malpractice claim arises after the child is eight, then the child has only two years. If the malpractice involves injury to a child’s reproductive system and it arises before the child is thirteen then the child has until his/her fifteenth birthday to bring a claim.

A general negligence claim, such as an auto negligence claim must be filed, within three years from the date of the accident. MCL 600.5805(10). In light of recent decisions by the Republican dominated Michigan Supreme Court, there is no discovery rule applicable to general negligence claims. Trentadue v. Gorton, 479 Mich 378 (2007).

Special rules apply in cases where the negligence results in death. In death cases, if the person dies before the statute of limitations has run or within 30 days after the limitations period has run, then the personal representative of the deceased person may file a claim within two years of the date letters of authority are issued by the probate court. However, under no circumstance can a claim be filed more than three years after the statute of limitations would have otherwise expired. MCL 600.5852.

As statute of limitations establish a date beyond which claims are barred and are frequently much shorter than people realize, anyone who believes they have a meritorious claim should act promptly in having their prospective claim evaluated. He who hesitates, claim may be lost.


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