How Much Time Do You Have to Sue After Surgery?

Published on November 27, 2023

Surgery is one of the most permanently life-altering experiences we endure as human beings. When we undergo surgery, we are at our most vulnerable and entirely dependent on the high quality of care we expect from our doctors. Though surgeries save countless lives each year, a small but persistent percentage of surgical patients experience serious injuries due to medical malpractice and surgical mistakes. Few things are as terrifying and bewildering as waking up from surgery to learn that a doctor’s error has resulted in an inalterable injury with lifelong consequences. 

In less common cases, the patient doesn’t discover the mistake until some time later when another doctor diagnoses their symptoms as an injury from a surgical error. But how long after the surgery does a medical malpractice victim have to file a lawsuit in Arizona?

When Is It Malpractice?

Patients cannot simply choose to sue after surgery because they aren’t completely happy with the results. In order to make a successful claim for malpractice, the victim bears the burden of proving through a preponderance of evidence that they suffered an injury due to a medical provider’s negligence and that the injury caused them to suffer damages. “Damages” in a malpractice or other personal injury case refers to the economic and non-economic consequences of an injury.

Arizona’s Statute of Limitations for Medical Malpractice Claims

Like all states, Arizona places a limit on the amount of time that the victim may file a personal injury claim after an injury. A medical malpractice claim such as a surgical error is a specialized form of personal injury in Arizona, but it falls under the state’s two-year limit for personal injury lawsuits.

Arizona’s statute of limitations for medical malpractice and other personal injuries serves the following important purposes:

• It ensures that evidence is still available if the claim becomes a lawsuit in court
• It helps ensure that eyewitness testimony remains reliable during the process
• It protects defendants from living under the indefinite threat of a lawsuit

When an injury occurs on the operating table, it’s a particularly egregious form of medical malpractice, making it essential to have reliable evidence and testimony available and fresh. When the victim files a lawsuit to recover their damages, it must be within the state’s two-year time limit or the court will simply toss it out unless it falls under one of the state’s rare exceptions.

Are There Exceptions or Extensions to the Statute of Limitations in Surgical Malpractice Cases?

Surgery is a complex area of medicine. In some cases, the injury victim may remain unaware that an error occurred for some time. For example, if a surgery patient experiences abdominal pain for months after surgery, their care team might assume it’s normal post-surgical pain. But if the pain worsens and the patient’s doctor performs imaging tests and discovers a surgical tool or gauze left inside the abdominal cavity, the two-year statute of limitations is delayed or “tolled” due to the rule of delayed discovery. In this case, the two-year time limit begins on the date the malpractice victim discovered the medical malpractice injury.

Arizona courts may also extend the time limit for underage victims. If a surgical malpractice injury occurs to a minor, they have up to two years past their 18th birthday to file a lawsuit.

Types of Surgical Errors in Medical Malpractice Claims

Surgical errors are among the most devastating medical mistakes, yet they still occur despite nationwide protocols to prevent them. Some medical malpractice claims in Arizona include the following types of surgical mistakes:

• Anesthesia errors
• Surgical tools left behind
• Wrong patient surgery
• Wrong side surgery
• Wrong site surgery
• Postoperative infection
• Failure to obtain informed consent

The surgeon and medical staff have a duty to obtain informed consent and then treat the correct patient with the correct procedure. When communication errors and other violations of protocols result in one of the above mistakes, the consequences may be life-altering for the patient. If a surgical error results in death, the family members may benefit from a wrongful death lawsuit in Arizona.

Proving Liability After a Surgical Error

Arizona’s two-year time limit to file a medical malpractice claim doesn’t allow room for lengthy delays in filing a claim for damages. It’s best to contact an attorney and file a claim as soon as the victim has a good idea of the scope of their damages. Because the injury victim bears the burden of proof, their attorney must investigate all aspects of the injury to determine the liable party. The attorney will document proof of the following legal points of liability in medical malpractice claims:

• A doctor/patient relationship was in place at the time the injury occurred
• The provider owed a duty of care to treat the patient at the industry-accepted level of care
• They breached this duty through an act of negligence
• The negligent breach of duty directly caused injury
• The injury victim suffered significant damages due to the injury

Crafting a compelling case for damages requires time to investigate, prove liability, calculate damages, and attempt to negotiate a settlement so the victim doesn’t have to go to court. Only in about 10% of cases does the insurance company deny the claim or offer an inadequate settlement, in which case the injury victim must take the case to court within the state’s two-year statute of limitations.

Damages in a Medical Malpractice Claim

When a surgical error causes an injury, it’s often serious or catastrophic for the patient. The injured patient should not be left responsible for the damages. Compensation for damages in surgical malpractice claims may include any or all of the following:

• Medical expenses
• Future medical expenses for corrective procedures, rehabilitation, or medical conditions resulting from the error
• Lost income
• Future income loss
• Diminished earning capacity due to disabling injuries
• Pain and suffering
• Loss of enjoyment of life
• Disfigurement compensation
• Compensation for limb loss
• Organ loss
• Emotional trauma and PTSD

Many victims of surgical errors experience significant emotional trauma and PTSD, particularly victims of awake surgeries due to anesthesia errors or those left with disfiguring scars, lost organs, or lost limbs.

If you or a close family member has been a victim of a surgical error, it’s important to speak to an Arizona medical malpractice lawyer as soon as possible so your attorney can file and process your injury claim within Arizona’s two-year statute of limitations.