Statute of Limitations
Kenneth I. Kolpan, JD (Editor)
The Statute of Limitations defines the time limit during which a person with a traumatic brain injury can file a lawsuit. The Statute has two main purposes: to make sure that any potential defendants are not forever at risk for a lawsuit and to encourage that legitimate lawsuits be filed while memories and evidence are fresh. Depending on the type of lawsuit, the Statute of Limitations can be any number of years. Once the time limit has passed, no suit can be started. The time period at which the Statute of Limitations begins to run is crucial. Does it begin when the person is injured or when the person discovers he or she is injured? State laws vary. Once the time limit begins, some laws lift the time limit while the injured person is disabled or incompetent and then resume the time period when the disability is removed. However, some states mandate an outer limit of time even when a disability tolls the time limit (known as a Statute of Repose).
The problem for the person with a traumatic brain injury is to make sure that any potential lawsuit is filed within the requisite time periods so that it is not forever barred. Once the Statute of Limitations has run, no lawsuit, legitimate or otherwise, can be filed. This becomes problematic for the head injured because the full extent of damages may not be apparent until a significant time period has passed. If a suit has not been filed within the requisite period, even if there are late consequences from the head injury, a later suit will not be allowed.
Traumatic brain injured individuals may benefit from the tolling statute because it gives more time during which to file suit. However, seriously head-injured individuals who seek medical treatment may often have a guardian (even if that is a parent) appointed for purposes of making personal decisions. The appointment of a guardian is considered a "removal of the disability," an end to the tolling provisions of any Statute of Limitations and the Statute of Limitations starts to run again.
In addition to the Statute of Limitations, certain lawsuits against government entities and any quasijudicial groups require the filing of a notice claim. The statutes that allow government entities to be sued require that a timely and proper notice be given to the appropriate government agency allowing them to investigate the claim. The time period for filing such notices tends to be a matter of days, months, and sometimes a year. If timely notice has not been given, the subsequent lawsuit, even if filed within the Statute of Limitations, will be dismissed. The deadline for filing a timely notice may be held in abeyance while the head-injured person is considered incompetent or incapacitated.
If a lawsuit is to be filed for a person with traumatic brain injury, applicable laws regarding notices and Statute of Limitations must be thoroughly understood to make sure the person with a traumatic brain injury's rights are protected. Family members and/or close friends should consult with legal counsel (who has experience with traumatic brain injury litigation) as soon as possible to minimize the risk of losing a case because of the Statute of Limitations and/or failure to serve timely required notice(s).