How do you determine the STATUTE OF LIMITATIONS for a FEDERAL CIVIL MALPRACTICE CASE?

[tiernan]

Is it based on the state's or is it independent? It's a medical malpractice case. THANK-YOU!!

[jarel]

A case involving the failure of an attorney to file a case before the expiration of the statute of limitations is sometimes called a "blown statute case." A blown statute would seem to be a slam-dunk legal malpractice case, assuming that the underlying case would have been won. However, there are many instances when the statute of limitations is tolled or extended. For example, was the previous lawyer run over while on the way to the courthouse? Or was his former client knocked unconscious? Perhaps his former client's negligent surgeon was out-of-state for several weeks, or declared bankruptcy. The expiration of one year does not necessarily mean that the plaintiff's rights were lost.

If a client presents a case that is based upon the failure of the previous attorney to file a complaint before the statute of limitations expired, the second attorney should make sure that it has, in fact, expired. If the subsequent attorney files a legal malpractice case, unaware that the statute has not expired, he or she -- and not the previous attorney -- will have caused the harm when the statute expires while the matter is under his or her control.

[thom]

If it's a Federal case, the statute of limitations is two years from the date of the incident giving rise to the claim or two years from the date you knew or reasonably should have known about the injury or damage giving rise to the claim. If it's not a case that would be handled at the Federal level (like cases involving non-Federally-employed physicians) it depends on the state. Here in Michigan, the statute is the same as the Federal statute -- two years.

[shadrach]

The statute of limitations for malpractice would likely be based on state law, since there is no "federal medical malpractice" (unless the malpractice was by a federal employee -- like a VA doctor-- and you're suing under the Federal Tort Claims Act) (even though you may be suing in federal court.) There is a "catch all" federal statute of limitations, but that only applies to claims arising under federal law that do not have a specific statute of limitations.

However, statutes of limitations are actually VERY COMPLEX, and adding the issue of a federal court, or a possible federal claim, makes it even more difficult. This is something that you need to discuss with an attorney who is licensed in your jurisdiction -- quickly.