(Traumatic Brain Injury Practice)

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. If filed, the suit can be eventually dismissed for not filing within the statutory deadlines. 

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 as the result of the alleged negligence of the defendant(s)? State laws vary. Does the time begin to run when the child becomes 18?  Is there an outside limit when a medical malpractice claim must be filed on behalf of a minor?

Once the time limit begins, some laws lift the time limit while the injured person is disabled or incompetent, the defendant is outside the state's jurisdiction, and then resumes the time period when the disability is removed or the alleged defendant returns to the jurisdiction. However, some states mandate an outer limit of time even when a disability tolls the time limit (known as a Statute of Repose). 

Recently, some states including Massachusetts have extended the Statute of Limitations for cases involving sexual abuse.  It is highly recommended you contact an attorney in your state and/or the state where the incident(s) occurred for legal advice about the applicable Statute of Limitations.

The Statute of Limitations may become more complicated for the person with a traumatic brain injury who needs 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 person with a traumatic brain injury 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, any quasi judicial groups involve certain slip and fall situations, accumulation of snow and ice may require the proper filing of a notice claim, referred to in Massachusetts as a "presentment" when a government entity is the alleged defendant.  The presentment must be served on the proper official or body, stating the facts sufficient for the government agency to evaluate 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. In some states, however, the fact that the injured person is a minor may not toll the required notice provisions. This is another reason to contact an attorney as soon as you believe or become aware of a possible claim, especially against a governmental agency.

Some states toll the Statute of Limitations and/or required notices during the injured person's minority (until age 18), while others do not.  It is crucial that the person with a traumatic brain injury, their advocate, family, guardian seek early legal advice from an attorney who practices in the state where the incident occurred.  Preservation of a brain injured person's rights to a jury trial and compensation is crucial to the person's overall rehabilitation and treatment because compensation may provide for treatments which are not otherwise covered by insurance or government programs. Most attorneys who handle brain injury cases on a contingent fee basis (where the attorney receives a fee upon the successful conclusion of the case), and consultation with an attorney is, therefore, without charge.

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). Most personal injury attorneys do not charge for consultation and advice about these important issues.