Did you suffer a serious injury years ago but failed to seek compensation? Maybe you had an old injury that was recently re-aggravated by a new accident, and now you’re in too much pain to work. Or perhaps you were injured as a child, and you’ve aged and want to file a claim against the at-fault party.
While the ability to file a personal injury claim is subject to a statute of limitations, and you’re only permitted a certain period to file your claim in court, there are some instances in which the statute of limitations can be paused, and you can still file a claim. Here is a look at when you can—and can’t—sue for an old injury.
What Is the Statute of Limitations, and Why Does It Matter?
The statute of limitations is a maximum time limit for filing certain legal claims in court. It ensures evidence remains fresh and available and witnesses can remember the matter at issue. Each state’s lawmakers determine the statute of limitations and write that time limit into the laws governing issues such as personal injury.
For example, in New York, the statute of limitations for personal injury claims is generally three years from the injury’s date. In comparison, New Jersey claimants typically have two years from the date of the injury to file a lawsuit in court, as do those in Connecticut. While it seems like an arbitrary number, ensuring that your lawsuit is filed before this period expires is one of the most critical aspects of your case because failing to do so will generally prevent you from receiving compensation for the expenses and impacts of your injury.
The personal injury claims process does not begin with the filing of a lawsuit but the filing of a claim against an at-fault party’s relevant liability insurance policy, such as an auto insurance policy after a car accident caused by a negligent driver or a property insurance policy if the injury was the result of a slip-and-fall accident.
When the insurance company receives the claim, they assign it to a claims adjuster, who will evaluate it to answer two questions:
- Is their insured liable for the accident?
- How much (if any) is owed to the claimant?
While this seems simple, it is essential to remember that the claims adjuster is an employee of the at-fault party’s insurance company. They’re not in the business of paying you. They’re in the business to save their employer money by not having to pay you as much as you are seeking and preferably by not having to pay you at all.
This is the lens through which the adjuster views the accident when they evaluate your claim and decide to take one of three options: pay the share, deny the claim, or offer to resolve the claim out of court for less than its value. If the insurance company fails to either pay the claim outright or make an offer the claimant agrees to accept, the case can be filed as a lawsuit.
While this doesn’t mean that your attorney must stop settlement negotiations once the claim is filed, it does mean that if the claims adjuster doesn’t convince the claimant to accept an offered settlement before the trial date arrives, the insurance company will face the expense, time, and uncertain outcome of litigation.
In the U.S., around 95 percent of personal injury cases settle out of court before the trial date arrives. If a settlement is the most likely method of resolving your claim, why does it matter whether you meet the statute of limitations?
Because litigation is a legal consequence for insurance companies, who fail to compensate third-party claimants for injuries incurred due to their insured’s negligence. If you are barred from filing the claim in court because the statute of limitations has expired, then there is no longer a consequence for the insurance company if they don’t pay your claim.
Exceptions to the Statute of Limitations
With everything you’ve read, you likely think the statute of limitations is set in stone. In many cases, it is. However, there are several situations and scenarios in which an individual would be unfairly penalized if they could not have additional time to file their claim.
Lawmakers realize this, and state personal injury statute of limitations laws often provide provisions for these scenarios. Here is a look at why the statute of limitations would be tolled (paused) to allow the claimant more time to file their lawsuit.
Childhood Injuries
When most people look back on their childhoods, they remember school days and summertime with friends. For some, however, youth is forever changed due to a serious injury. According to the Centers for Disease Control and Prevention (CDC), an emergency department treats a child for an injury every four seconds, and every hour, a child in this country dies because of an injury. Despite a 30 percent reduction in childhood injuries in the past decade, injury is still the number one cause of death for children.
Some of the common ways that a child can become injured as a result of someone else’s negligence include:
- Car accidents result in more than 4,500 child deaths and hundreds of thousands of injuries annually.
- Product defects can cause suffocation.
- Falls can result from unmitigated residential, commercial, or public property hazards.
- Drowning can result from unsupervised access to bodies of water and a failure of a property owner to place a barrier around their residential pool or spa.
- Birth injuries resulting from medical malpractice.
Children are not permitted to enter legal contracts such as a contract with an attorney or a settlement agreement. Because of this, they cannot file a personal injury claim independently. Their parents can file the claim for them. However, if a claim has yet to be filed by the time the child reaches the age of majority (18), they can hire an attorney and file their claim. The statute of limitations is tolled until they are old enough to do so.
Mental Incapacitation
Just as children cannot file a personal injury claim independently, neither can adults who were incapacitated by accident. Courts will generally toll the statute of limitations until the claimant regains their mental capacity and can file it independently.
However, it should be noted that the courts will not wait indefinitely for the claim to be filed. After some time, without the claimant regaining their capacity, the ability to receive compensation for the injury will likely be lost. However, in cases of mental incapacitation, if an individual has been given legal power of attorney over the injured person, they can file the claim on behalf of that person.
Not Being Aware That You Were Injured
The discovery rule is additional time that many state personal injury laws provide if the injured party was not immediately aware they had been injured. While it seems at first blush that anyone would immediately know if they were seriously injured, it can take a while for this knowledge to become clear in certain types of accidents.
Those accidents include:
- Medical malpractice claims involve a surgical tool or sponge being left inside the body after a surgical procedure. If the error wasn’t discovered before the surgical opening was closed, the patient would not know of the injury until the item in the body cavity began to cause medical problems, such as infection. Likewise, your physician could have failed to diagnose your injury or didn’t discover your injury until after the statute of limitations expired. In either of these scenarios (among others), you may have a viable medical negligence claim against the healthcare provider.
- Product defect claims, such as dangerous medications that cause cancer. Because cancer has a latency period, it can be years before the claimant realizes they were injured due to using the medication.
What About Pre-Existing Conditions and New Accidents?
One of the most common tactics of insurance claims adjusters attempting to reduce the claim’s value is requesting that the claimant release their medical history. The adjuster will search this medical history with a fine-tooth comb, looking for pre-existing conditions.
Why? Because they’re not responsible for compensating for old injuries, except to the extent that the most recent accident aggravated the pre-existing injury. They must reimburse only the expenses and impacts resulting from the worsening of the injury, not the injury itself.
An Attorney Can Help You Determine if You Can File a Claim for an Old Injury
One of the best ways to know if you can file a claim for an old injury is to ask an attorney. Many people hesitate to speak with an attorney after they’ve been injured in an accident because they don’t feel like they can afford their services.
However, remember two things about the matter:
- You can have a free consultation with an attorney to discuss your claim, learn more about the statute of limitations and whether it will be a factor, learn about other legal options that are available for you, and receive information about the services the attorney can provide if you find that you are eligible to file a claim. You wish to move forward with the process.
- Personal injury attorneys use a contingent fee billing method to charge for their services. This means that payment for their services is contingent upon your claim’s successful outcome. If you don’t receive compensation, your legal team doesn’t get paid for their services. If you receive compensation, your attorney will receive an agreed-upon percentage of your settlement or court award.
Other Assistance an Attorney Can Provide
If your attorney determines that you do, in fact, still can file a claim, and you decide to hire them to help you navigate the personal injury claims process, they can begin working on your claim immediately, providing services such as:
- Investigating the case to learn all the sources of liability and the relevant liability insurance policies that can be used to provide your compensation.
- Establishing a value to your claim. Once you have reached maximum medical improvement (the point at which your injury has stabilized and you are unlikely to see any additional recovery, even with continued treatment), your attorney will determine a value to your claim based on factors such as the severity of the injury, the presence of permanent injuries that will require the compensation of future expenses and the impact the injury has had on your quality of life.
- Communicating with the insurance provider on your behalf to prevent a reduction of your claim due to the claims adjuster’s tactics and to keep the conversation focused on fairly compensating you.
- Managing your claim’s timeline to ensure that you retain your right to use the court process by filing your claim within the statute of limitations for your state and the facts of your claim
- Compiling the documentation necessary to prove your claim’s value and the evidence and witness testimony needed to show liability
- Litigation services, including representation of your claim during pre-trial motions and hearings and presentation of your case in court
- Collection of the proceeds of your settlement or award. Your attorney will receive the funds on your behalf. From these funds, they will settle any medical liens placed on the award and deduct the agreed percentage for their payment before turning the rest of the compensation over to you.
If you have an old injury and need compensation, explore the available legal options by calling a personal injury lawyer near you for your free case evaluation.
Talk to a Personal Injury Attorney About Your Old Injury
Personal Injury Lawyer, Andrew Finkelstein
If you sustained serious injuries in an accident due to another party’s negligence but did not discover those injuries until considerably after the initial incident, get in touch with an experienced personal injury attorney as soon after your accident as possible. An attorney can handle any type of personal injury claim, including one that you may need to manage well after the initial incident.
An attorney can help collect evidence regarding your accident.
While evidence may prove harder to collect if years have passed since your accident, an attorney may have the ability to access information that you cannot. Attorneys have experience dealing with complex investigations and may guide you to better understand how to collect that information and put it together into a comprehensive personal injury claim.
An attorney can help you understand what to expect from the process.
How much compensation can you really recover, especially if years have passed since the accident? What should you expect as you move forward with your claim? An attorney can help guide you through that process and give you a better idea of what to expect at each stage of your claim.
Do you need a personal injury attorney? Get in touch with an experienced personal injury lawyer as soon as possible to discuss whether you may have the right to file a claim even after the statute of limitations has passed.