Failure to Comply with Statute of Limitations Gives Rise to Legal Malpractice Actions

A Statute of Limitations is a statute, or law, that restricts the period of time an individual has to bring legal action from the date of the occurrence. The time periods vary from state to state and the amount of time depends upon the type of claim or cause of action. If an action is not brought within the applicable Statute of Limitations, an individual is forever barred from initiating that particular action and recovering monetary damages unless a legal exception applies, such as the plaintiff being a minor. An attorney’s failure to adhere to the statute can result in a legal malpractice action.

In New York, the statute allows for three (3) years to initiate a personal injury action, whether predicated on negligence or “strict tort liability” or “strict products liability.” A claim of negligence against non-medical professionals, such as legal malpractice, has a three (3) year statute, while medical malpractice cases have a two and a half (2.5) year statute, encompassing all medical professionals, including physicians, dentists, hospitals, etc. A wrongful death action in New York has a two (2) year statute of limitations from the date of death of the decedent to bring such a claim.

In the same types of cases, New Jersey imparts different time restraints within which to commence legal proceedings. There is a two (2) year Statute of Limitations for personal injury, products liability, medical malpractice and for wrongful death actions; however the exception to this two (2) year statute is the Discovery Rule. The Discovery Rule applies to a medical malpractice action and provides that the Statute of Limitations does not begin running until the facts presented to a reasonable person would indicate that that reasonable person, exercising ordinary diligence, was damaged or injured by another. The person would have to have knowledge of the injury and that it was due to the negligence of another person.

Failure to comply with the Statute of Limitations, no matter where the action is venued and what type of action, may ultimately give rise to a legal malpractice action. Although there are many other causes for claims of legal malpractice, missing a Statute of Limitations can easily be avoided by the law firm maintaining a organized system of the dates of loss or dates of onset of injuries.