Answering All Your Questions about Personal Injury, Social Security Disability, Complex Litigation, Special Needs Planning, and Probate
When a catastrophic event puts your future at risk, anxiety and uncertainty will cause you to have a million questions. What can you do? How can you provide for your family? Will you recover?
Allow the extensive experience and knowledge of the Packard Law Firm put your worries to rest. Come learn the answers to your questions and see how we can help pull you out of the depths of uncertainty.
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What Is The Lawsuit Deadline For Injuries To Minors and Children?
Children cannot bring suit in their own name until they become an adult. Parents and certain other adults can bring suit on behalf of a minor child, but they do not always do so. What happens if the adults do not protect the child’s case? The Texas Constitution protects children in this circumstance and by preventing the statute of limitations from starting until the child turns 18 years old. For example, if a 10-year old girl is injured in an accident and nobody files suit to protect her rights, she has until two years after her 18th birthday to file suit.
What happens if your doctor commits malpractice over a period of time?
It can be hard to determine when the statute of limitations begins if a doctor commits malpractice over a long period of time.
When you are dealing with a car wreck, it is easy to know when the statute of limitations begins to run – the date of the wreck. However, in the context of medical negligence, sometimes it is hard to know when the statute of limitations begins to run. Suppose you go to the doctor for a number of years and each time, he misses a cancer diagnosis, or suppose your mother is in a nursing home and the doctors and staff neglect her for many months? In these cases, the safest thing to do is to file suit within two years of the first mistake, but if that is not possible, courts have held that the statute of limitations is kept open until a reasonable time after the last date of treatment.
Other Types of Legal Deadlines:
What is the Statute of Limitations When the Negligence Causes Death?
In some cases, a person is injured in an accident and then dies from his injuries some time latter. When this happens, when does the 2-years start to run – on the date of the injury or on the date of the death? The answer is both! For the family members who are asserting wrongful death claim, their statute of limitations begins not when their loved one was injured, but at the death. However, if the deceased suffered pain and suffering before death and incurred medical bills because of the injury, then the estate also has a claim, and the statute of limitations for that case starts to run from the date of the injury, not the date of death. (Click here for the leading case on this issue. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 348 (Tex.1992).
Please also note that there is an exception when dealing with medical negligence cases. The statute of limitations begins to run when the injury occurs regardless of when the death occurs. Thus, a wrongful death plaintiff suing on a medical negligence theory does not necessarily have two full years from the time of death to bring a lawsuit. Rather, the statute of limitations expires at the same time it would have for the decedent – two years after the alleged negligence occurred.
What if the negligent party is a government employee?
Government entities have a notice requirement in addition to a statute of limitations. For example, if you are hit by a school bus driver or a city maintained worker, you are required by law to give the particular government agency written notice of your claim before you file suit. These notice requirements act like a statute of limitations because if you fail to give written notice, you probably have killed your case forever. The notice deadlines are very short – usually between 3 to six months from the date of your injury – depending on whether you are talking about a city, county or state government entity. Click here for the City of San Antonio Charter requiring notice within 90 days of the injury. After you give proper written notice of your claim, you are still required to file your lawsuit before the normal statute of limitations expires.
What is the Statue of Limitations Period for an Uninsured/Underinsured Motorist Claim?
If you are hit by a car and the other guy is at fault, then you potentially have two claims
- the claim against the at-fault driver, and
- the claim against your own car insurance company if the other driver does not have enough insurance to cover all your damages.
Deadline For Filing a Lawsuit
The claim against the at-fault driver is a negligence claim, which means that the deadline to file suit is 2 years.
However, the claim against your own insurance company is considered to be a breach of contract case, which means that the statute of limitation is 4 years. And it is not 4 years from the date of the injury, but 4 years from the date your insurance company wrongfully denied your claim. The cause of action in a breach of contract accrues when the contract is breached, or when the claimant has notice of facts sufficient to place him or her on notice of the breach.
Even though the statute of limitations is 4 years for a UIM claim, it is usually better to file suit within 2 years because, many times, you will have an argument that the insurance company acted in bad faith or violated the Texas Deceptive Trade Practices Act, which both have a 2-year statute of limitations. Thus, if you rely on the 4-year statute of limitations, you still will have your breach of contract case against your car insurance company, but you may not be able to assert some of the other theories that could increase the value of your case.
What if I didn’t know that I was injured until later?
When you are in a car wreck, you will almost always know the date you were injured because, by their very nature, car wrecks are sudden and obvious events. But what happens when you are exposed to dangerous chemicals and the symptoms don’t show up until years later? Or what happens if a doctor leaves a foreign object in your body after surgery and you don’t discover it until years later? In these cases, courts will give you a reasonable time to file your lawsuit after you discovered that you have a claim for damages. There are at least two primary ways to keep the statute of limitations open when the injured person does not know they have a claim: (1) the Discovery Rule and (2) Fraudulent Concealment.
The Discovery Rule
The discovery rule exists in case where you could not reasonably be expected to learn that you were injured by someone else’s actions. For example, you may have known that you were exposed to a chemical, but you did not know that you were injured until after the two-years expired. In that case, courts will give you a reasonable time to file suit – not necessarily a full 2 years, but enough time to hire a lawyer and get your lawsuit on file. (click here for more information about the discovery rule).
HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998). “The discovery rule has been applied in limited categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action. [There are] two unifying principles that generally apply in discovery rule cases. They are that the nature of the injury must be inherently undiscoverable and that the injury itself must be objectively verifiable. [T]he applicability of the discovery rule is determined categorically.” See also Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex.1997).
S.V. v. R.V., 933 S.W.2d 1, 7 (Tex.1996). “An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence. [¶] [T]he ‘objectively verifiable’ element [may be] asserted [when] demonstrated by direct, physical evidence. … Expert testimony [alone does] not supply the objective verification of wrong and injury necessary for application of the discovery rule.”
In the law, there is a difference between simply keeping quiet about your own negligence and actively deceiving others about your mistakes. For example, if a doctor makes a mistake during surgery and then lies to the patient about what happened, he may have committed fraudulent concealment that could extend the statute of limitations until the victim learns or should have learned that they have a claim. This sounds a lot like the discovery rule, but it is actually different. With the discovery rule, the focus is on whether the Plaintiff’s injury was undiscoverable. In contrast, with fraudulent concealment, the victim knows that she has been injured, but the wrongdoer has actively concealed his mistake or misconduct. Thus, with fraudulent concealment, the focus is on whether the wrongdoing was actively concealed. (Click here for more information about fraudulent concealment Holland v. Thompson, 338 S.W.3d 586, 596 (Tex.App.—El Paso 2010, pet. denied). “Fraudulent concealment works to estop a defendant from asserting limitations as a defense because 'a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.' Fraudulent concealment tolls the statute of limitations until the injured party, using reasonable diligence, discovered or should have discovered the injury. The elements of fraudulent concealment are (1) the existence of the underlying tort; (2) the defendant's knowledge of the tort; (3) the defendant's use of deception to conceal the tort; and (4) the plaintiff's reasonable reliance on the deception. See also BP Am. Prod. v. Marshall, 342 S.W.3d 59, 67-68 (Tex.2011).
Other Types of Legal Deadlines: