Are you considering filing a civil lawsuit after medical malpractice?
Did you know that you have a certain amount of time following the medical error to file your lawsuit in the civil courts?
In this article, our Montreal health lawyers explain more about the statute of limitations for medical malpractice and when it commences.
Limitation period for filing a lawsuit following a medical mistake
Article 2925 of the Civil Code of Quebec reads as follows “An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined.“
In other words, the victim of a psychological and/or personal injury resulting from a medical error has three years to file a civil suit and claim compensation.
When does the limitation period start to run?
The three-year period for filing a civil lawsuit runs from the time of the medical malpractice when the patient’s injury occurs at the same time.
Time limit when the injury appears progressively
If the injury appears gradually over time in the patient, the three-year limitation period does not begin to be calculated until the injury is first noticeable.
In the majority of medical error cases, therefore, the time limit will begin to run at the point at which a person with reasonable judgment would suspect that a wrongful act involving the physician’s liability had been committed. As long as relevant information remains hidden or is not available, the time limit does not run.
In the case of a diagnostic error
In such circumstances, the time limit for the victim to sue begins to run when the victim learns that the diagnosis was erroneous.
Limitation period if the victim of medical malpractice is an incapable person or a minor
When the damage caused by a medical error is suffered by a person of full age who lacks capacity, it is up to the person’s guardian, curator or mandatary to file a civil suit within the prescribed three-year time limit. If the victim is a minor, the guardian must file the suit within the statutory time limit.
The time limit remains the same and the time at which it starts will be determined according to the same criteria.
Limitation period for a person unable to act within the period
The limitation period does not run when the victim is able to prove that it was impossible for him or her to act within the statutory period.
Exception for acts that may constitute a criminal offence
Since 2020, the Civil Code of Quebec has been amended to provide in article 2926.1 that an action for damages for bodily injury resulting from an act which could constitute a criminal offence is prescribed by 10 years from the date the victim becomes aware that the injury is attributable to that act.
The same subsection provides that an action for damages arising from sexual assault or abuse by a spouse, former spouse or during childhood is not subject to any statute of limitations. Therefore, there is no time limit for bringing such an action.
Given the above, while the healthcare environment is not immune to such behaviour, in the event that a person wishes to take recourse against a healthcare professional who has abused his or her relationship to engage in sexual relations or perform abusive acts of a sexual nature, there is no time limit for filing such a recourse.
Contact MedLegal to determine the statute of limitations that applies to your situation
In conclusion, while the decision to file a medical malpractice lawsuit should not be rushed, you should be mindful that you have a certain amount of time to pursue it.
If you are considering taking legal action and don’t want to get stuck for time, contact us now to discuss your situation.
Our medical liability service is intended for users of the healthcare system who consider themselves victims of professional misconduct and offers personalized legal advice and assistance throughout the claims process.