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Limitations period must be checked in medical malpractice claim

Louisiana, like all states, has a number of statutes that define the time during which a person can bring a lawsuit. These are called statutes of limitation. In a medical malpractice case, the statute of limitations can often become an issue that the defense may raise to try and say that the plaintiff took too long to file the case.

The purpose of these statutes should be obvious: the law needs to have closure. People cannot be haunted by the prospect of a legal claim for decades. In addition, pursuing a claim many years after the events have transpired is a very difficult thing to do when it comes to producing witnesses, documents and other evidence of what occurred.

The general rule is that the time clock will begin to run on one's period to file as soon as the tortious action, or failure to act, took place. However, there is a doctrine in the law that may extend, or "toll," the running of the statute, during such times that the plaintiff did not know, and had no way of knowing, that he or she had been the subject of malpractice. This concept is generally referred to as the "discovery rule."  

That rule generally starts the clock running at the time when the plaintiff knew or should have reasonably known of the malpractice. This rule will apply when the defendant or others take action to falsely report the events, give false information to the patient or when records are destroyed or hidden from the patient. It may apply in other situations where it is difficult or impossible to determine that medical malpractice has occurred. In Louisiana, an attorney experienced in medical malpractice laws and procedures is the best source to consult to determine whether the statute of limitations is still active or whether it has expired.

Source:, "Legal-Ease: Statutes of limitation", Lee R. Schroeder, July 30, 2016

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