A statute of limitation refers to a body of law that specifies the time period within which an individual must file a claim for compensation for a negligent or a wrongful action that has caused the individual or a loved one to sustain an injury or suffer losses.
After this period is over, the individual no longer has the right to file a compensation claim or seek relief, unless the case falls under a legal exception.
The following is a very general outline of the Statute of Limitations. As you will see from reading below, the statute of limitations can range from very simple to very complex. As well, the statute of limitations applicable to your particular case could vary depending upon where the incident occurred, which state’s law applies, the type of case it is and the facts of your situation. The “takeaway” I hope to leave you with is twofold: 1. Do not delay! Seek the advise of an attorney as soon as possible; and 2. Do not try to “DIY”(Do it yourself) unless you have a very simple case.
The General Texas Statute of Limitations
According to the tort laws in Texas, the statute of limitations for filing a compensation claim for a personal injury claim is two years. This statute applies to cases of negligence that are referred to as “torts.” These can involve cases involving car wrecks, workplace injuries, defective products, and medical malpractice.
The typical statute of limitations that applies to a car wreck case is generally two years from the date of the wreck.
Such instances include motor vehicle accidents caused by the reckless act of a driver, such as:
- driving under the influence;
- driving when distracted; and/or
- violating traffic rules.
In more complex cases, such as medical malpractice cases, the calculation of the statute of limitations may prove to be more difficult. For example, when the exact date of negligence can be easily determined, the statute would generally begin to run from the date of the incident. Such instances include:
- hospital falls
- medication errors
- surgical fires
- wrong site or wrong patient surgery
- medication mix up
In other instances, however, the exact date of medical negligence may be subject to legal interpretation. For example, if there has been an ongoing course of treatment for the medical condition at issue, if there were several different acts of negligence on different dates, or if the negligence could not have been discovered by the patient. Examples of these types of cases include:
- retained foreign objects
- diagnostic errors
- medication prescribing errors
- opioid addiction and overdose
As well, in the case of certain dangerous drugs and defective medical devices, there may be multiple possible statute of limitations. For example, a patient may have taken a drug and had an adverse reaction to it, but they did not know that there was a potential problem with the drug until after the traditional two year statute of limitations had expired. Another example might be a defective medical device that had been implanted in the patient for more than two years, but did not begin to cause any injury until some time later.
Certain exceptions apply to minor children because until they reach the age of majority, they lack the legal capacity to bring their own claims. Generally speaking , the statute of limitations is tolled until the minor child turns 18 years old. However, in medical malpractice cases, the time is shorter.
Members of the Armed Services
Another exception is for active-duty military personnel. The law allows an exception when an injury victim is stationed oversees on active duty.
The Discovery Rule in Texas
The “discovery rule” is another exception to the usual statute of limitations for filing injury cases. In many cases, the victim may not reasonably discover the injury until a considerable length of time has elapsed after the negligent act was committed.
The discovery rule allows the plaintiff to file the claim within a reasonable time once the injury is discovered. However, in Texas the discovery rule may not apply in all circumstances.
Statute of Repose
Regardless of whether an exception to the general two year statute of limitations may apply, Texas has a ten year statute of repose, meaning no case under any circumstances may be filed greater than ten years after the incident occurred.
Claims Against Governmental Entities
Special rules apply to cities, counties, states and the federal government. These are generally referred to as “notice of claim” and vary according to the type of claim you have. In many instances, failure to follow the prescribed method for placing the government entity on notice of claim may completely bar you from pursuing your case.
Contact Van Wey, Metzler & Williams, PLLC for Legal Help
The “takeaway” from this very general outline is that the statute of limitations can be very complex in certain circumstances. If you or a loved one have been the victim of negligence, you would be well served to seek the advice of an experienced (and preferably board certified) personal injury trial lawyer who is familiar with the various statutes and case law pertaining to the particular circumstances.
You would be well advised to seek the advice of an attorney as early as possible so don’t wait too long and potentially allow an important deadline to pass.
By: Kay Van Wey | December 24th, 2015