Denver, CO asked in Personal Injury and Medical Malpractice for Colorado

Q: Can the statue of limitations start on when you find out about the issue

4 Lawyer Answers
T. Augustus Claus
T. Augustus Claus pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›

A: The statute of limitations for a personal injury or medical malpractice claim in Colorado can start to run when you discover the injury or malpractice rather than from the date of the injury or malpractice itself. This is known as the "discovery rule."

The discovery rule applies in cases where the injury or malpractice is not readily apparent when it occurs. For example, if you receive medical treatment and later discover that the treatment was negligent, the statute of limitations would start from when you found the negligence rather than the treatment date.

Tim Akpinar and Michael Joseph Larranaga agree with this answer

Tim Akpinar
Tim Akpinar
  • Medical Malpractice Lawyer
  • Little Neck, NY

A: As a general note about the discovery rule, many jurisdictions have the additional element of "should have known," in addition to actual knowledge. That's something to discuss with local attorneys. Good luck

Michael Joseph Larranaga agrees with this answer

Michael Joseph Larranaga
Michael Joseph Larranaga pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Parker, CO
  • Licensed in Colorado

A: It should also be noted that different statutes of limitations will apply to different types of claims. IE, a personal injury case will be treated differently than a breach of contract case. Further, fraud can be a factor in when the SOL starts to run.

This issue confuses a lot of attorneys. If you think you have a claim, reach out to an attorney.

Tim Akpinar agrees with this answer

Laurence Michael Deutsch
Laurence Michael Deutsch
  • Medical Malpractice Lawyer
  • New York, NY

A: You will need an answer from a Colorado attorney. That said, I would get that answer as soon as possible because, at least in New York (my State of practice) and many other states, the time it takes to "discovery" malpractice does not necessarily stop the clock for limitations purposes. In fact, in New York, time to discovery only rarely stops the clock (for certain cancer misdiagnosis cases). Typically, the time to sue (in NY generally limited to 2.5 years) starts to run from the date of alleged malpractice.

That said, there are various extensions or "tolls" that may also apply, such as for a person under 18. However, as you can tell from only this brief discussion, the time limits are often not straight forward. Therefore, do not assume you have the full/maximum limitations period of Colorado in order to start your claim, but seek in-State advice sooner rather than later. There is also the practical issue that most reputable attorneys won't review a matter in which the time is just about to expire.

I hope this is of some help to you.

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