Clock is Ticking on Medical Malpractice Cases
Knowing whether or when to take legal action against a medical professional for an injury caused by an error or negligence can be confusing. One family knows all too well the risk of waiting too long to take legal action in response to an alleged medical error in 2009.
In December 2009, the mother of the two children gave birth to them at Lawrence Memorial Hospital in Lawrence, Kansas. The hospital delivered the two children by Cesarean section. However, as a result of medical negligence, one of the newborn children died and other was born with a preventable neurological injury, according a recent news article in the Lawrence Journal-World about a lawsuit filed by the family.
The family has taken legal action twice since 2009 against the attorneys they originally sought legal advice from after the incident. The couple first sought legal advice regarding a potential medical malpractice case in 2010. However, the law firm chose to drop the matter in December 2011. At the time, the law firm allegedly gave the parents inaccurate advice regarding the statute of limitations in the case.
Statute of Limitations in Kansas
The general rule for medical malpractice lawsuits in Kansas is that the victim or surviving family has two years from the date of the death or injury to file a legal claim - but this law has many exceptions and special cases. If a living person with a cause of action is under 18, the law in Kansas is that said person generally has until his or her 19th birthday to take legal action. One significant exception to this rule is that no action can be commenced more than eight years after the time of the alleged malpractice - so if the person in question is under age 11, the statute of limitations is effectively eight years. Conversely, if the person in question is within a year of his or her 18th birthday, then the standard two-year statute of limitations applies - for instance, a patient who is 17½ at the time of the malpractice would have until age 19½ to file a lawsuit. Nevertheless, the statute of limitations for a wrongful death action arising from medical malpractice remains two years, regardless of the age of the patient.
In this situation, the parents would have had two years from the date of the death to seek compensation for the death of their son, and eight years from the date of birth to seek compensation for their surviving son's personal injuries. The two-year statute of limitations for the wrongful death action ran out roughly one week after the Kansas City firm removed themselves from the case. The family attempted to pursue the claim with another firm, but the case was rejected for being submitted too late.
In October 2015, the couple unsuccessfully filed a lawsuit against the attorneys. That case was dismissed in July 2016, according to the Lawrence Journal-World. Now, the couple has decided to file another lawsuit against the former law firm for legal malpractice in their handling of the case.
Pursuing a Medical Malpractice Claim
The family's current legal case against a former law firm should serve as an important reminder for anyone considering taking legal action after a medical error or mistake that results in a serious injury or death of a loved one.
Medical malpractice cases and statute of limitations laws can be very confusing. Each state has its own unique rules. And if individuals don't follow these rules, they could miss out on their opportunity to obtain the financial compensation they rightfully deserve.
This recent case also illustrates the importance of consulting with attorneys who thoroughly understand how Kansas' legal system works. Having an attorney on your side with experience handling such complicated cases can often make a dramatic difference in the outcome of a case.
When seeking legal advice, it's important that victims and their families receive the best information available, that action is taken quickly by the law firm that accepts the case, and that everyone involved is prepared to handle the expectations the state places on the plaintiffs.
In Kansas, experts in the relevant medical field must be brought in for most claims. Even if such a case doesn't go to trial, a medical malpractice claim can be a demanding process, which the lawyers must be prepared to handle and to guide the victim or their family through.
For individuals over the age of 18, in general, the deadline to file a malpractice suit is based on the date of either the malpractice itself, reasonable knowledge of it (but in no event more than 4 years from the date of the incident), or the date of death. The statute of limitations can be complicated and may be open to interpretation, so victims are encouraged to seek legal advice as quickly as possible. It's always better to take action early than to watch the deadline pass without justice being served.