A statute of limitations is a legal time limit on how long you have to file a lawsuit. You’ll often see a statute of limitations written about as if it were a clock or a countdown—when it starts running and when it stops. If you were hurt by a negligent medical provider, it’s important to talk right away with a lawyer about how long you have to file a medical malpractice case in Hawaii.
Hawaii’s Medical Malpractice Statute of Limitations
Hawaii Revised Statute (HRS) §657-7.3 addresses the statute of limitations on medical tort actions. Medical torts are how Hawaii refers to medical malpractice cases.
The law says that no action for injury or death against a licensed medical professional or hospital based on their alleged professional negligence, for rendering professional services without consent, or for an error or omission in their practice shall be brought more than two years after you discover, or through the use of reasonable diligence should have discovered, the injury.
You have two years from the date the negligent medical care happened, from the date you found out about it, or from the date you reasonably should have found out about it to file a lawsuit. You can see that there might be some confusion about when the clock starts running or when the countdown begins.
When the Statute of Limitations Begins to Run
The statute of limitations starts to run when you realize you didn’t receive the medical care you should have, and there’s a connection between that and your current injury or condition. This is before you know with any certainty that the doctor was negligent and before you get an expert opinion.
For example, if you were injured in a procedure by a negligent surgeon, it might’ve been apparent when you woke up. You and your family might’ve known immediately that the procedure was on the wrong area of the body or the wrong procedure entirely. In this case, you have two years from the date of the improper surgery to file.
But it’s common to not realize what happened for weeks or months, sometimes even years. You might go back to that doctor more than once because something isn’t right, and it might take getting a second opinion to learn the original healthcare provider did something wrong or failed to do something they should have. In these instances, you may have more than two years from the negligent treatment to file your lawsuit.
Hawaii follows the Discovery Rule for medical torts, which means the statute of limitations doesn’t always start the day the negligence occurred. Your cause of action arises when you discover, or reasonably should’ve discovered, the issue. This is true whether you were an adult or minor when the negligence happened.
Hawaii’s Statute of Repose
The statute of limitations is the time limit for filing a lawsuit, but it can be lengthened for various reasons. You might end up with more than two years to file a medical negligence case in Hawaii. There is a limit to how long you have, however. Many states also provide an absolute final cut off for when you can file your claim, and this is known as a statute of repose.
HRS §657-7.3 also says no action shall be brought more than six years after the date of the alleged act or omission caused your injury or loved one’s death. This six-year limitation can only be tolled (paused) during any time when the professional knows about but fails to disclose any act, error, or omission, which your action is based on.
When the Statute of Limitations May Be Tolled
An important aspect of the statute of limitations is that the countdown can be paused, which can result in you having more than two years to file. The action of stopping the clock for a time and restarting it later is known as tolling.
Fraudulent concealment can pause the statute of limitations under HRS §657-20. The clock doesn’t run during anytime the doctor knows they did something wrong and is taking steps to hide it.
Certain conditions are considered disabilities under the law, and you the clock is paused while you’re under that disability. Under HRS §657-13, if you’re deemed mentally incompetent or imprisoned when the medical negligence occurred or when you discovered it, then your medical malpractice claim might be tolled.
Another factor is if the negligent medical provider leaves the state. Under HRS §657-18, the statute of limitations begins to run again after the defendant returns to Hawaii. This is reserved for when someone who knows they are liable for a crime or civil lawsuit attempts to evade a court case by leaving the state.
The Statute of Limitations for Minors
If you’re currently a minor or your minor child was hurt by medical malpractice, the statute of limitations is slightly different. Hawaii law gives minors six years from the date of the wrongful act to file a lawsuit. However, minors under 10 years old who were hurt must file the action within six years or by their 10th birthday, whichever period is longer.
It’s best to pursue a medical malpractice claim as soon as possible, which is why a parent or guardian usually files on behalf of an injured child. Hawaii lawmakers realize minors are dependent on their parents or guardians for this, which is why the statute of limitation is tolled any time a parent, guardian, insurer, or health care provider has committed fraud or gross negligence or has colluded with others in failing to bring an action on behalf of the minor.
Call Menzer Law Firm for Advice Today
Talk with an experienced Maui medical malpractice lawyer as soon as you realize you didn’t receive proper medical care. Matt Menzer has decades of experience successfully handling medical negligence cases throughout Hawaii and the mainland. He understands you probably didn’t know you were the victim of medical malpractice the day it happened, and he’ll talk with you about when your statute of limitations begins and ends.