Interviewer: How important is it to file a claim promptly? And what are some of the statute of limitations?
Attorney Donig: Okay. It is absolutely critical to file your claim promptly. Don’t lose sight of the fact that the other side, whether it’s an entity, an individual, or an insurance company acting on behalf of that entity or individual, is looking for a reason not to have to pay out money. And the statute of limitations is one of the basic reasons how they can avoid having to pay. If you don’t get your claim filed on time, or your lawsuit filed on time, that usually presents an absolute defense and reason for them to not pay. Some of the important statutes of limitations to bear in mind are the following. For your normal run-of-the-mill personal injury claim against another person or private entity, including a corporation, it’s in California two years from the date of the incident which caused the injury.
If you have a claim, however, against a public entity, a city, the state for a road, perhaps an accident that happened on a sidewalk or a freeway due to some dangerous condition, you have only six months from the date of the incident to file what’s called a claim with the proper entity, with the proper person at the city or county or state level, who you believe is responsible, you know, the county official that you believe or the city official and their office and their department. You have to file a claim within six months, and then within six months further after you receive notice that the claim has been rejected or roughly seven and a half months, if they never respond, you have to file your lawsuit.
So, you don’t have a two-year statute of limitations in the claim against the governmental entity. If it’s a medical malpractice claim, the statute of limitations is yet again different. It’s shorter. Generally speaking, it’s one year from the date that the malpractice incident occurred, or one year from the date in which you reasonably discover or should discover that you’ve been harmed. So, if on January 1st you’re operated on and the doctor leaves a sponge in, you can figure January 1st the following year might be your statutory deadline. However, if you don’t develop any symptoms until February 1st, there’s no reason you should know about it until February 1st. Your statute might run until February 1st of the following year.
There’s an outside limit under all circumstances for medical malpractice of three years from whatever the date of the malpractice occurred, regardless of when, or you discovered or should have discovered it. There’s a special additional provision that before filing suit, you’re to give the doctor notice of your intent to file suit. And that can prolong your statute of limitations by an additional 90-days. But cautionary the best advice is try to get that lawsuit filed within one year from the date in which you believe the malpractice incident actually occurred. If you are dealing with a minor in many cases, although this is not true against the governmental entities, but against private entities, individuals, corporations, and so forth, a minor’s statute of limitations does not expire until the minor reaches the age of 20.
So, if a child of age four is injured in an incident, actually he doesn’t have to file a lawsuit until his 20th birthday. It’s a two-year statute of limitations, but it doesn’t start to run until he turns 18. So, that’s why it’s the 20th birthday. So, the good advice, it always makes sense to put the other side on notice of the incident that caused…and of the intent to bring a claim as promptly as possible because even though there may be many years before the statute of limitations expires, you wanna make sure that the other side’s aware that a claim might be filed, that their insurance company’s aware if it gets stale, if you don’t bring the claim for many years you lose valuable evidence. And the other side is more likely to tell you that they have no knowledge of the claim and aren’t providing for it.
So, that just creates a level, an additional level of difficulty. But strictly speaking, the statute of limitations for a minor’s injury, against, and this is for a claim against a private entity or a private individual, not against a governmental entity, it doesn’t expire until age 20. But there’s no additional time provided beyond the six-month claim notice for a governmental claim, even if the injured person is a minor. All right.