Birth Injury Statute of Limitations
The birth injury statute of limitations is a state-specific deadline for filing a lawsuit. Our state-by-state reference tool can help you determine whether you still have time to file a claim. It is important to contact a birth injury lawyer as early as possible to determine how the statute of limitations applies to your specific claim
- Last Updated Date: September 22, 2023
Each state’s medical malpractice laws govern the statutes of limitations for birth injury lawsuits. Birth injury lawsuits may be filed for medical errors that led to the injury or death of the infant or the mother. The parents or the child may file the claims. The statute of limitations may change based on the type of claim and who files the claim.
Types of Birth Injury Lawsuits
The most common birth injuries are those to the child. Depending on the type of birth injury, the baby may experience long-term or permanent impairments impacting the baby’s quality of life and potential for independence as an adult. The mother may also experience permanent injuries.
Unfortunately, some birth injuries result in the death of the mother or the child. When this occurs as a result of medical malpractice, the surviving family members may be able to recover compensation in a wrongful death lawsuit.
The parents may file a birth injury lawsuit on behalf of the child. In some states, the child may file a lawsuit once they reach the age of 18. The statute of limitations applicable to each case may depend on the following:
- Whether the lawsuit is for injury or death
- Whether the lawsuit is filed by the parents or the child
- Whether the extent or cause of the injury was immediately apparent
In some states, the type of injury may impact the statute of limitations. For example, in Maryland, the statute of limitations is unrestricted if the mother experiences damage to her reproductive system. In Nevada, the statute of limitations is extended if the infant suffers brain damage, a birth defect, or sterility due to a birth injury.
Birth Injury Lawsuits by the Parents
Parents may be able to file a birth injury lawsuit to recover compensation for their own losses related to birth injuries sustained by the baby, including the following:
- Medical expenses
- Lost wages as a result of having to stay home to care for the child full-time
- Excessive childcare costs
- The cost of individual tutoring
- The cost of assistive devices
- The cost of remodeling a home to accommodate a child’s disabilities
- Emotional distress
Birth injury lawsuits on behalf of the parents carry a shorter statute of limitations in most states than lawsuits filed by or on behalf of the child.
Birth Injury Lawsuits Filed by or on Behalf of the Child
Birth injuries can force a child to go through life with cognitive and physical disabilities that result in the following losses:
- Excessive medical expenses
- The cost of assistive devices
- Ongoing therapy
- Limitations in earning potential
- An inability to live independently
- Pain and suffering
- Reduced quality of life
- Infertility
- Disfigurement
When these losses stem from a doctor’s negligence during childbirth, the child may have a claim for compensation. Parents can file a lawsuit on a child’s behalf, or a child can file a lawsuit after reaching the age of 18. The statutes of limitations in each state vary regarding when a child must file a birth injury suit.
Some states allow a child to file a lawsuit within a specified period after turning 18, while others require the lawsuit to be filed while the child is still a minor. While most states extend the statute of limitations for lawsuits filed by or on behalf of the child, a few states do not.
For example, the Tennessee statutes state that the parent must file on the child’s within the same period provided by the statute of limitations applicable to other medical malpractice cases.
Birth Injury Lawsuits for Wrongful Death
The same statute of limitations generally covers wrongful death cases regardless of whether the mother or child died from the birth injury. While some states provide different statutes of limitations for death versus non-fatal injuries, the statute of limitations is the same for both in many states.
The wrongful death statute of limitations may begin to accrue on the date of death or the date the medical malpractice occurred, depending on the state.
The Discovery Rule
The discovery rule makes an exception to the statute of limitations when the injury or cause of the injury was not immediately apparent. In many cases, the statute of limitations expires before the injury is discovered.
The discovery rule allows you to file your lawsuit within a specified time frame after you discovered or should reasonably have discovered the injury.
Some states simply restart the clock on the statute of limitations beginning on the discovery date, while others provide an additional time frame shorter than the initial imitations period.
For example, in California, the statute of limitations for birth injuries and wrongful death is three years for claims on behalf of the parents and eight years for the child. If the injury is discovered after the statute of limitations has expired, you have one year from the discovery date to file a claim.
When Might the Discovery Rule Apply in Birth Injury Cases?
The effects of birth injuries are not always discernible on the day of the birth. This is common in cases involving brain injuries.
For example, cerebral palsy commonly results from oxygen deprivation during birth. However, this condition is often diagnosed during the toddler years—and sometimes even later. The statute of limitations has often expired by this time. The discovery rule ensures parents of children with cerebral palsy can still file a lawsuit.
Do All States Have the Discovery Rule?
While most states have some version of the discovery rule, some severely limit its scope. For example, in Georgia, the discovery rule only applies to limited cases when a foreign object is left in the body after surgery. This, of course, does not apply to most birth injury cases.
How Is the Date of Discovery Determined?
When medical negligence occurs, you may not be aware of either the negligence or the injury. Sometimes, you may be aware of an injury but unaware that medical negligence caused it. In other cases, the injury itself does not become apparent until later, even if you were aware of an error.
There is no cause of action without an injury. Being aware of an error without an apparent injury does not constitute discovery.
The discovery date is the date on which you discover the injury, or if you were previously aware of the injury, the date on which you discover the injury’s cause. However, this date is not always determined by when you became aware of the injury but also by when you should have become aware of it with the exercise of due diligence.
If you discover an injury after the statute of limitations has expired, the defendant may argue that you should have discovered it sooner.
The concept of due diligence is somewhat subjective, and it is often left to the discretion of the court to determine when you should have discovered an injury. Examples of due diligence may include the following:
- Promptly investigating symptoms or abnormalities of the child
- Attending regular checkups
- Following testing and treatment recommendations
- Requesting tests when you are aware of an injury or abnormality
If a defendant successfully argues that you should have discovered an injury sooner, a judge could reset the discovery date to one earlier than the date you actually discovered the injury. An earlier discovery date means the statute of limitations expires earlier.
In most cases, this is a desperate attempt by the defense to dismiss the lawsuit based on an expired statute of limitations. An attorney with the Birth Injury Center can refute this argument and ensure your claim survives such a motion.
Fraudulent Concealment
If the doctor intentionally misrepresented or omitted information about an error, preventing you from discovering the true cause of your child’s birth injuries, the clock on the statute of limitations may be reset to the discovery date, even if the statute of limitations had expired. Such misrepresentation or omission is known as fraudulent concealment.
This rule often applies even in states that have not adopted the discovery rule for birth injuries.
What Is a Statute of Repose?
A statute of repose is a hard deadline for filing a case. It generally applies when an exception is made to the statute of limitations, such as the discovery rule.
For example, in Pennsylvania, a claim on behalf of the parents must be filed within two years of the injury or discovery of the injury, but there is a hard deadline, or statute of repose, of seven years after the injury. After this deadline, a claim cannot be filed, even with the discovery of an injury.
Pennsylvania’s statute of repose does not prevent a child’s claim, which can be filed until the child’s 20th birthday. However, these damages are limited to the child’s losses and do not compensate the parents for their damages.
Some states make an exception to the statute of repose in cases involving fraudulent concealment by a doctor or when specific injuries are sustained.
What Does It Mean That a Statute of Limitations Is Tolled?
When the clock on the statute of limitations stops, it is said to be tolled. The tolling of the statute of limitations may occur in the following instances:
- An injury or error has not been discovered.
- The plaintiff is a minor.
- The plaintiff is legally incompetent.
- The defendant has left the state.
- The doctor has fraudulently concealed an error or injury, preventing it from being discoverable.
- The court issues a stay that prevents the commencement of the lawsuit.
- The defendant actively evades service of the lawsuit.
The tolling of the statute of limitations varies between the states. For example, the statute of limitations is tolled for minors in most states, but not necessarily until the person turns 18. Never assume a statute of limitations has been tolled. Contact a birth injury lawyer immediately if you need to file a claim.
When Does a Statute of Limitations Stop Accruing?
A statute of limitations generally stops accruing when you officially file a lawsuit. There is usually a deadline for when the defendant must be served. In some states, the statute of limitations continues to run until the defendant is served.
What Happens If You File a Lawsuit After the Statute Of Limitations Has Expired?
If you file your lawsuit late, the court will likely dismiss your case unless you qualify for an exception, such as late discovery or a plaintiff residing outside the state.
You should never assume your case qualifies for an exception. Most people do not qualify for an exception. Missing the statute of limitations would be a devastating reason to miss out on justice. It is not worth the risk.
Missing this important filing deadline will likely prevent you from ever receiving a birth injury settlement or having your day in court.
Notice of Intent
Some states require plaintiffs to serve a Notice of Intent or a similar document on a defendant, which indicates you intend to file a lawsuit. This notice may be required 90 or more days before the statute of limitations expires. In some states, serving the Notice of Intent later can extend the statute of limitations by the number of days specific to the notice.
For example, suppose a 90-day Notice of Intent is required before you can file a lawsuit, and you provide the notice one day before the statute of limitations expires. Some states may extend the statute of limitations by the number of days left in the notice after the statute of limitations expires, or 89 days in this case.
However, this does not always apply. Some states require the notice to be provided a sufficient number of days before the statute of limitations expires. In these states, your lawsuit could be barred if there are not enough days left before the statute of limitations expires to accommodate the notice period.
The laws regarding the Notice of Intent are complex, and it is best to speak with an experienced birth injury lawyer in your state as soon as possible to determine how this requirement may apply in your case.
Birth Injury Statute of Limitations By State
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
Eight years
Discovery Rule
6 months after discovery or discoverability, whichever is earlier, but never longer than four years after the error (statute of repose)
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
2 years from the date of discovery but only applies if the error or injury could not be undiscovered due to fraud
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
20 years
Discovery Rule
2 years after discovery
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
11 years
Discovery Rule
2 years after discovery in cases filed for the parents
For cases filed for the child, 2 years after discovery but no later than the 19th birthday
Wrongful Death
3 years after the death
Injury Claims by Parents
3 years after the date of injury or 1 year after discovery, whichever is shorter
Injury Claims by or on Behalf of the Child
8 years
Discovery Rule
1 year after discovery
If fraud by the parent, guardian, doctor, or insurer prevented discovery, 3 years after discovery
Wrongful Death
3 years after the injury or 1 year after discovery, whichever is shorter
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
8 years
Discovery Rule
2 years after discovery, but not later than 3 years after the error
Wrongful Death
2 years
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
2 years
Discovery Rule
2 years after discovery, with a 3-year statute of repose
Wrongful Death
2 years after death, but no more than 5 years after the injury
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
6 years
Discovery Rule
If the injury is not discovered within 2 years, the statute of limitations is extended to 3 years
Wrongful Death
2 years after the injury
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
21 years
Discovery Rule
3 years after discovery
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
8 years
Discovery Rule
2 years from the date of discovery with a 4-year statute of repose
Wrongful Death
2 years
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
7 years
Discovery Rule
Not applicable to birth injuries
Wrongful Death
2 years from the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
2 years, with a statute of repose of 6 years
The statute of limitations is tolled during any period when a health care provider, insurer,and/or parent collude or fraudulently conceal an error.
Wrongful Death
2 years from the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
6 years
Discovery Rule
1 year after discovery
Wrongful Death
2 years from the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
8 years
Discovery Rule
2 years after discovery, with a 4-year statute of repose
Wrongful Death
2 years after the error that led to death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
8 years
Discovery Rule
2 years after discovery if the limitations period has already expired. If discovery occurs before the statutory period expires, the suit must be filed within a reasonable amount of time.
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
2 years after discovery with a 6-year statute of repose
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
8 years
Discovery Rule
2 years after discovery, with a 4-year statute of repose
Wrongful Death
2 years after the death
Injury Claims by Parents
1 year
Injury Claims by or on Behalf of the Child
19 years
Discovery Rule
1 year after discovery with a 5-year statute of repose
Wrongful Death
1 year from the date a personal representative is appointed
Injury Claims by Parents
1 year
Injury Claims by or on Behalf of the Child
1 year
Discovery Rule
1 year after discovery with a 3-year statute of repose
Wrongful Death
1 year after the error
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
6 years
Discovery Rule
No discovery rule for birth injuries
Wrongful Death
2 years after the death
Injury Claims by Parents
The earlier of 5 years from the date of injury or 3 years from the date of discovery
Injury Claims by or on Behalf of the Child
6 years (The 3 or 5 year statute begins to run at age 11)
Discovery Rule
3 years from the date of discovery with a 5-year statute of repose
Wrongful Death
3 years after the death
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
7 years
Discovery Rule
3 years from the date of discovery with a 7-year statute of repose
Wrongful Death
3 years after the death, not more than 7 years after the error
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
6 months, with a 6-year statute of repose
Wrongful Death
2 years after the death
Injury Claims by Parents
4 years
Injury Claims by or on Behalf of the Child
7 years
Discovery Rule
No discovery rule for birth injuries
Wrongful Death
3 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
8 years
Discovery Rule
2 years, with a 7-year statute of repose
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
20 years
Discovery Rule
2 years, but only if the doctor fails to inform about the results of a medical test
Wrongful Death
2 years
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
10 years, and the statute of limitations is tolled during any period the child does not reside with the parents
Discovery Rule
2 years, with a 5-year statute of repose
Wrongful Death
2 years after the injury
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
23 years
Discovery Rule
1 year with a 10-year statute of repose
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years after injury
Injury Claims by or on Behalf of the Child
3 years, extended to 10 years in brain injury cases
Discovery Rule
1 year after discovery with a 3-year statute of repose, which applies to injuries and wrongful death,
Exception: If the adult child discovers sterility stemming from the birth injury, the child has 2 years to file a claim.
Wrongful Death
1 year after the injury or discovery
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
20 years
Discovery Rule
3 years after discovery
Wrongful Death
3 years after the injury
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
13 years
Discovery Rule
2 years after discovery
Wrongful Death
2 years after the death
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
9 years
Discovery Rule
3 years after discovery
Wrongful Death
3 years after the death
Injury Claims by Parents
2.5 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
None for birth injuries
Wrongful Death
2 years after the death
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
1 year after discovery with a 4-year statute of repose
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
12 years
Discovery Rule
2 years after discovery, with a 6-year statute of repose
Wrongful Death
2 years after the death or discovery of the error
Injury Claims by Parents
1 year
Injury Claims by or on Behalf of the Child
19 years
Discovery Rule
1 year after discovery, with a 4-year statute of repose, except that 1 full year is allowed if discovery is made after 3 years but prior to 4 years
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
7 years
Discovery Rule
2 years after discovery
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
5 years
Discovery Rule
2 years with a 5-year statute of repose
Wrongful Death
3 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
20 years
Discovery Rule
2 years
Wrongful Death
2 years
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
21 years for the child if not filed by the parents within 3 years
Discovery Rule
3 years after discovery
Wrongful Death
3 years after the death or discovery of the error
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
3 years, with a 6-year statute of repose
Wrongful Death
3 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
19 years
Discovery Rule
No discovery rule
Wrongful Death
2 years
Injury Claims by Parents
1 year
Injury Claims by or on Behalf of the Child
1 year
Discovery Rule
1 year after discovery with a 3-year statute of repose
Wrongful Death
1 year after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
14 years
Discovery Rule
Only applies if the injury is fraudulently concealed or if the court deems the injury as “inherently undiscoverable” and results in the courts have been mixed
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
20 years
Discovery Rule
2 years with a 4-year statute of repose, which is extended by one year if errors leading to injury were fraudulently concealed
Wrongful Death
2 years after the death
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
21 years
Discovery Rule
2 years with a 7-year statute of repose, with no restrictions if errors leading to injury were fraudulently concealed
Wrongful Death
2 years after the death
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
1 year, but only in cases in which errors leading to injury were fraudulently concealed
Wrongful Death
2 years after the death
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
21 years
Discovery Rule
1 year after discovery with an 8-year statute of repose
Wrongful Death
3 years
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
12 years
Discovery Rule
2 years, with a 10-year statute of repose, and the statute of limitations is tolled for any period during which the error is fraudulently concealed
Wrongful Death
2 years after the death
Injury Claims by Parents
3 years
Injury Claims by or on Behalf of the Child
10 years
Discovery Rule
1 year after discover, with a 5-year statute of repose
Wrongful Death
3 years after the injury
Injury Claims by Parents
2 years
Injury Claims by or on Behalf of the Child
20 years
Discovery Rule
2 years after discovery
Wrongful Death
2 years after the death
Contact the Birth Injury Center to Start Your Case Today
Don’t miss out on potentially winning substantial compensation for your child’s birth injuries. Each state has numerous requirements that must be met before a lawsuit can be filed. Early attorney involvement is essential to ensure the timely filing of your case. Contact the team at the Birth Injury Center today to schedule your free consultation.
Written by:
Birth Injury Center Team
The Birth Injury Center aims to create informational web content and guides to help women and their families seeking support and guidance for birth injuries caused by medical negligence. All of the content published across The Birth Injury Center website has been thoroughly investigated and approved by medical expert Natalie Speer, RNC-OB, Attorney Ryan Mahoney.
