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EP #3: Understanding Statute of Limitations in Personal Injury Cases
Attorney Alessandro Assanti breaks down California's complex statute of limitations framework, revealing the crucial time windows that govern different types of injury claims. Most Californians don't realize they have just two years to file standard personal injury lawsuits, three years for property damage claims, and a mere six months when government entities are involved. Medical malpractice victims face particularly challenging deadlines: one year from discovery with a maximum three-year outer limit regardless of when the injury was discovered.
Whether you've recently been injured or suspect you may have a claim from the past, understanding these time limitations could be the difference between receiving fair compensation or having your case dismissed without consideration. Contact Alessandro Assanti at 877-245-3911 or visit AssantiLaw.com before time runs out on your claim.
Visit assantilaw.com to learn more.
in a government claim when you have noticed that it's a governmental entity. You only got six months to file a claim, because if you won't, then you're barred. You know, and that's what it means if you don't meet the statute of limitations on anything, wherever it is, but in six months if you don't file a claim to toll that statute of limitations, you're're out.
Intro/close:Welcome to the Advocate Source, where we simplify the law for life's toughest moments, From personal injury to family disputes and business conflicts. We're here to help you understand your rights and take action.
Charlie McDermott:Welcome back listeners and viewers. Charlie McDermott, producer, here once again with Alessandro Asante. Alessandro, how are you doing today?
Alessandro Assanti:Good. Thank you, Charlie. Everything's well. How's everything?
Charlie McDermott:Yeah, things are going wonderfully, and it's as we typically do these on a Friday afternoon, and there's nothing better than Friday afternoons, right?
Alessandro Assanti:Looking forward to the weekend yeah, so I can catch up with work.
Charlie McDermott:Well, as many of our listeners now know because they're following you, alessandro is an attorney and he's a very successful one, and if you're in his neck of the woods in Southern California you're probably already familiar with him. But he carves out time on a regular basis to help those in the state of California and really beyond. But I know obviously you're from a law standpoint. We focus on California law and today is a very interesting topic we're going to get into understanding the statute of limitations in personal injury cases. Are you ready for that?
Alessandro Assanti:I sure am Thank you for that. Thank you for the warning, because there's some simple things and then there's some very complicated things about the statutes of limitations in California.
Charlie McDermott:Yeah, I'll bet. Well, let's start with the basics. So can you explain what the statute of limitations is and why it's crucial in personal injury cases?
Alessandro Assanti:Of course, thank you. So what the statute of limitations is and does is it gives people the opportunity to file a lawsuit, but the reason why they said there's only so much time you can is because it prevents things from, or prevents defendants from having to defend a claim when the evidence goes by the wayside or people forget and they call that, you know, stale evidence.
Alessandro Assanti:So you know I've used this term before is you know you have a bottle of wine that you may get as a gift, that's a very nice one, and you say you know I'm going to put it away and it's going to be better in time, but not with evidence and not certainly with cases that you want to. You know, preserve evidence and then maybe one day you'll have to take it to court.
Alessandro Assanti:So they say, you ought to file it before a certain time. And there's, and that's where it's simplified, but then it gets very difficult, and you know, because there's many statutes of limitations depending on the type of claim you file in California.
Charlie McDermott:Okay, okay. So let's start, alessandro, with the typical timeframes for filing personal injury claims in California.
Alessandro Assanti:Okay, sure, so they divide them into. There's claims for personal injury and then there's different types of personal injury for personal injury, and then there's different types of personal injury, and then there's claims regarding those damages that you will sustain involved in that personal injury. Those are called property claims, right? So between a personal injury claim and a property claim, so, for instance, you get in an accident and you're harmed personally, there's a two-year statute of limitations in a normal accident or a normal personal injury claim. But then the car is a completely separate issue and that is a three-year statute of limitations. Okay, so the personal injury claim, depending on what type of claim, it is right, there's all kinds of claims. There's injury that arises out of an auto accident or out of somebody's negligence. That's a two-year statute of limitations. And then there's also injuries that arise out of medical malpractice or a professional medical provider, medical malpractice or a professional medical provider, and that could be anywhere from a dentist to a person that is a physical therapist. Medical providers they're subject to what they call is the MICRA statutes, and that was a 1975 act that reformed the personal injury arena as it involved medical claimants. So in that they call it MICRA, but what it really means is Medical Injury Compensation Reform Act, and that took place in 1975. So all those years they capped the amount of damages. But they also said if you have a claim that you're going to need to file that within one year, okay, and here's where it gets confusing you have to file that within one year, okay. And that has to do with when you would reasonably know when you were harmed. And so sometimes you know, we get, we get clients in here that have such a claim and they may have had an injury that they didn't know about for many years, right? So when it happens, there's all kinds of issues that would go with regards to that, because you know so.
Alessandro Assanti:For instance, you have a personal injury claim that arises out of medical malpractice. Well, the medical malpractice arena requires that you get one year. But let's say you had a surgery and that didn't raise its head or you didn't start to feel the effects for some years after, right? So then you have, right, one year from the date of you would reasonably discover that injury. So when you started hurting or went to the doctor and you had a suspicion and they call it reasonable suspicion do you have a reasonable suspicion that the doctor that either operated on you or treated you, caused you an injury. You'd have one year from that day and then, if you never noticed it, you would have three years from the date of when that surgery occurred. Surgery occurred, so you'd have either the two years from the day you found out or three years from the day that injury occurred.
Alessandro Assanti:So whatever you know came first Now, before you'd ever could even file a lawsuit to perfect your claim. That's why, you see, you have a statute of limitations and this goes for everything is you need to make sure you meet that statute of limitations by preventing it from the statute running by filing a lawsuit in the state of California, and there's some nuances with regards, but I'll stick to the medical malpractice and then we'll go to the other stuff. So when you have a medical malpractice claim, you have to file what they call and this is, you know, part of that micro statute that came back in 1975, you'd have to file what they call is a 364 notice, which is a declaration that you've, you know that and it allows the doctor to understand the nexus of the claim against him, or it allows the medical provider, I should say, the nexus of the claim against him and it has to be. You know, you almost say you have to do some homework, you have to consult an expert, and then you have to file that declaration that I consulted an expert and here's, you know, here's what I found. You don't have to disclose that expert, but you have to disclose that you did some due diligence before you filed the lawsuit. So it's quite difficult. Did some due diligence before you filed the lawsuit? So it's quite difficult. So we'll go back to the civil stuff. We'll go out of the medical arena. Let's go to the civil side of it. Right, and that's the two years. Well, that's not the end of it.
Alessandro Assanti:What happens if you have an injury by an entity that's a governmental entity? Okay, for instance, you know someone was, you know the state, whether it's the state of California or the county or a city government, whatever entity you have and whether it's a truck that hits you or you get harmed some way. And sometimes we get, you know, bicycles that are on public roadways and you know they recently paved the road and for some reason, you know, they repaired a pipe and it leaked and it caused a divot in the ground and someone was riding by and it caused the person to fall over and harm himself. Well, whole different statute limitations there In a government claim, when you have noticed that it's a governmental entity, you only got six months to file a claim because if you won't then you're barred. You know, and that's what it means if you don't meet the statute of limitations on anything, wherever it is, but in six months if you don't file a claim to toll that statute of limitations, you're out.
Alessandro Assanti:Okay, and that also has to do. You know you have public hospitals. That same short window statute of limitations also applies to them. So that's why I'm saying whenever you get hurt, make sure you do your research but also consult with somebody, because the statute of limitations is a is a web of just confusion to the normal person.
Charlie McDermott:I mean you would think it would be, you know a time frame that's across the board for every condition and wow so. So what about, like a workplace, workplace injury? How long do you have?
Alessandro Assanti:OK, okay. Workplace injuries Okay, depending on you know if you are a third party, what they call it right? What that means is, let's say that you're a third party, meaning that somebody else hurt you. It's not your employer, it's not something that arises out of your employment, right? It's not something that arises out of your employment, right? Okay? So that would be a third-party claim. For instance, we see many people that are working on a construction site and there are several different businesses, several different businesses.
Charlie McDermott:There's a general contractor and I'm just going to get to the workers' compensation scheme later.
Alessandro Assanti:But let's say it's not. Workers' compensation scheme only happens to those where you're claiming against your own employer, okay, and sometimes you get both of those things. That's why it's confusing. So, for instance, let's just talk about third party right now. We won't, we won't get too crazy.
Alessandro Assanti:But you, you're a third party and somebody else's employee from a different company causes something to fall on a worker and injures him or her, then it's the same as if it's a civil case, right, it's the same thing as a regular two-year statute of limitations. So it's pretty simple there. So it would be very simple. Unless you know, that person may have been working underneath a general contractor that could have been a public entity. Then you can say, okay, I better, not only do I have to preserve the two-year statute of limitations against the direct company and the employee that harmed me, because they're not a governmental entity. That's two years but then you have to file a government claim against the general contractor within six months if it is a governmental entity.
Alessandro Assanti:Yeah, so different from the workers' comp. Now let's say you have and this is a whole different arena the workers' compensation scheme in the state of California is different from civil cases. You're able to collect general pain and suffering damages In the workers' compensation scheme. They don't do that. It's just a simple what is your disability? They don't even. That's one year from the date of injury or diagnosis of the injury in a workers' compensation scheme.
Charlie McDermott:So are there any exceptions to that statute of limitations?
Alessandro Assanti:Any situations Great question, many, many exceptions, and that is that again that leads to. Of course, there's many exceptions and they have to do with and what these exceptions do is they toll the statute of limitations. So when you're talking about tolling the statute of limitations, you're saying, okay, there's a two year for civil claims, there's a one-year for medical malpractice, blah, blah, blah, and six months for, you know, the public entity statute. But if you have an exception, that means that you're excused from that time frame, not to say that you're excused forever, but you're excused for a period of time. For instance, let's go back to the civil side of it regular two-year statute of limitations.
Alessandro Assanti:But let's say that a minor was injured in an auto accident, or a minor was injured on his bicycle, you know, by a car, and he has a claim against the operator of that vehicle, the operator of that vehicle and he's a minor. So you would have until the age of, you know, 18 plus two years. So you know he could, he could very well file a claim, you know, within within two years after he turns 18. Okay, Okay.
Alessandro Assanti:Yeah.
Charlie McDermott:Okay, yeah, all right. So there's this thing called the discovery rule, right, yes, and how does that impact the statute of limitations, as you know, especially in cases where injuries or their causes aren't immediately apparent? I guess that's a that sounds like a tricky one.
Alessandro Assanti:Yeah, and and and. That comes a lot in the medical malpractice arena. As I was saying, because you know, you have a, you have a surgery, for instance, I'll I'll give you a client, or you know, and it's happened, it's happened twice that I've I've had clients with. That is a poor guy went in for a surgery years before. He had two accidents, right, the first accident, well, I'm sorry, he had one accident. So one accident he went in and let's say it was in 2020.
Charlie McDermott:Okay.
Alessandro Assanti:And he goes and he has some abdominal pain right. So they do a CT scan and in that CT scan they notice that there's what they call a surgical marker inside his abdomen right. Even though he doesn't have an injury resolving his abdomen, he has pain there. So obviously he has a claim for being struck by the car. And but guess what they found? That surgical marker, they revealed, was a surgical sponge left in him five years before when he had, uh, an appendicitis right, right, yeah. So not only do we have a case against the driver because he had, you know, scratches and bruises and things like this, but he and so you know we have to.
Alessandro Assanti:what they call is a portion, those things out. Who's responsible for the, his injuries for the abdomen? It would have been the doctor right, because we now discovered that he had a surgical sponge left in him. So the statute would begin to run at the time he found out that he had a surgical sponge left in him, so the statute would begin to run at the time he found out that he had the surgical sponge.
Charlie McDermott:That's the discovery.
Alessandro Assanti:That's the discovery yeah Interesting A lot of fights in the medical malpractice arena happened. You know, for instance, there's all kinds of fights regarding whether the statute of limitations ran. If someone had a surgery and you know, they suspected something was wrong. They had pain, but they really didn't know because was the pain the result of her recovering from the surgery or was the pain the result from the surgeon, you know, severing an organ. You know, for instance, I've had cases where the doctors had gone in and I'll give you, you know, a scenario that I had years ago.
Alessandro Assanti:A lady had a hysterectomy. She goes into the hospital, gets the surgery, she gets out and starts to develop. This condition called hydrophenosis means that her urine is not coming out of her kidney into the bladder correctly. It's essentially there's a blockage. There's a blockage right. So when did she discover that? Because she was obviously ailing, because the surgery was painful, right. But it wasn't until three months later that they figured out oh, we're sorry, guess what, we severed your ureter on your right side. Wow what, we severed your reader on your right side.
Alessandro Assanti:So you know the doctors, you know, when you're in litigation, they're always trying to say well, you didn't file in time, or you didn't file your 364 notice, which is, as I was telling you, that's a notice which again tolls the statute, but you have to do it, you know within. You have to give the doctor 90 days to answer that and if he doesn't, then you could file a lawsuit. But okay, so they're arguing. Well, she should have known at the time of surgery. And our arguing is that, no, she didn't know whether she was in pain because of the healing and the complications regarding surgery, but certainly she had no clue that you severed her reader, right.
Alessandro Assanti:So those are always the defenses that the defense counsel, you know, puts up to protect their clients. So those are the notice, those are the discovery. And so they say and with regards to all that, it's when a reasonable person would know that somebody harmed them, right, yeah, wow. So when you have an accident, right, no one disputes that when you got hurt, you know, when you were injured, on those things. But when you get into more complicated matters, such as surgical procedures and things like this, you know, then the discovery rule has a real, real big complication on things.
Charlie McDermott:Wow, all right. How about you touch on this earlier? I just want to make sure we cover it fully. If we miss anything, can you discuss how statutes of limitations applying cases involving government entities?
Alessandro Assanti:Statutes of limitations applying cases involving government entities. Okay, so, yes, the government entities. Whenever you have a governmental entity, whether it's a federal government, whether it's a state government or even a local municipality, whatever it would be, whether it's a school, whether it's a hospital, anything that has that is owned by a government, you know here in California, you know the, the, the hospitals, you know they're, sometimes they're a UCI or or or a part of the university of California system or state of California. Those are public entities and so, okay, so here's how that goes. There's a lot of complication with the gap. So you have to file a government claim within six months of the date that you suspect the injury, right, and so that's for anything you know. And again, it's more difficult when you have a medical issue, and so it would go back to when you reasonably discover issue, and so it would go back to when you reasonably discovered. But let's say you discover that you know you went into the hospital and then you discover that you have an injury in a medical malpractice setting or a medical setting, then you would be, you would have to file that 364 notice within six months of you, you know, of a reasonable person understanding that they had an injury right. So and same with an auto accident or same with a premises liability.
Alessandro Assanti:You know if it's by a government or on governmental property. Most of the highways, like the PCH, you know their, their state, run the the the streets are. You know they could be county and city. And so we have to, when we get a case like that, we have to quickly go and we have to look at the records and to see you know what entities were annexed and who owns it or who controls it. And then we have to file that government claim and it has to be within six months.
Alessandro Assanti:Now they can do a couple things. Governments can either sit on it and not do anything, of which then you have from when you filed. You have six months right, deny it. You got six months. If they sit on it, then you normally have two years. If they don't respond, because you've preserved, you've told that statute of limitations, but to it we usually file before the statute of limitations for the government claim. But if they deny it, you're on the clock. You got six months from the day of denial to file a lawsuit to toll the statute, or if you can resolve it by then, yeah, yeah yeah, all right, this is a good one.
Charlie McDermott:I'm sure this happens quite often. So what happens if someone files a personal injury claim after the statute of limitations has expired?
Alessandro Assanti:entity. You may have an excuse, you know, and one of the biggest excuses is someone has a disability, okay, or they were not able to file because of mental incapacity. Those are. That's usually the only basis where you can say you know, I was not able to file because I was mentally incapacitated and that works with the regular statute of limitations. So there are some tolling provisions and those are certainly some of the two. Or if you're a minor, as I said previously, Okay, all right, good, good.
Charlie McDermott:So then, what steps should individuals take to ensure they file their personal injury claims within the appropriate timeframe?
Alessandro Assanti:claims within the appropriate timeframe. The first step is that, as soon as they have any suspicion, you know and this goes to those cases where you know they didn't involve a customary traumatic event, right, always go to an attorney and say tell them, you know, go to a qualified attorney and ask them I have a suspicion because, as I just displayed in this podcast, it is very confusing, right, yeah, but that's that's what I can say. You know, there's research tools that you can do, but then I think they lead to a lot of confusion and that's why I say you know, you want to go to someone that knows what they're doing, that has done this, that has experience, because there's a lot of complexity when it goes. You know, when it leads to, you know if you got injured by an entity, you know, and so get the police report, find out. You know a lot of people look.
Alessandro Assanti:The first thing they look when they get a police report okay, who's at fault? Right, and Andy, because you want to know what the opinion was or you know which is. You know that's opinion when we say opinion is what the police officer or, you know, investigator found, but those are always hearsay, but you always want to know what the evidence shows. You know investigator found, but those are always hearsay. But you always want to know what the evidence shows, you know, and who's at fault or not. But the most important thing, I think, is you got to know who the parties are, and so you know, depending on who the parties are, who owns vehicles, who controls roadways. You know what type of an employee it was that will trigger, you know how you go. But the most important thing you can do is I, my, my advice is consult somebody that knows what they're doing.
Charlie McDermott:Yeah, and ideally someone who specializes in personal injury law, because, as you share throughout this episode and other episodes, it's not something that any attorney can just wing it right. I mean, it's just like all the other specialties in law.
Alessandro Assanti:Yeah, charlie, you know, and I know we spoke, you know, before and you gave me the topic and I said I want to just gather a few things just to alert you know, just to jog my memory of you know, so I can tell people about these nuances. And as I'm going through it, I'm like this is this is a good complicated topic and it's great that we covered it, but it is a confusing one because it requires it requires study and experience to know it well yeah, yeah, alessandro.
Charlie McDermott:Any final words of advice for someone who was trying to figure this out regarding the statute of limitations for personal injury 100%.
Alessandro Assanti:yes, thank you. And, and as I always always say, reasonable suspicion means that if you start to have an understanding that someone may have harmed you, even though you're not 100% sure, a suspicion is different than I'm convinced. Unconvinced and suspicion are two different things, but the law recognizes suspicion is when the clock starts ticking and if you miss that statute of limitations you're out. So as soon as you suspect something, as soon as you're able to go see an attorney because you're healing from your injuries, consult with somebody. It'll be the best thing you can do. It'll be. It'll be the best thing you can do, and that's the first thing any attorney should do is ask you when it happened, who did it, so they can start to formulate a game plan, and when they can.
Charlie McDermott:They're. They're bound to file a lawsuit so they can protect you or file a claim, whatever that may be Great, great advice. I would think for a lot of people it's probably human nature to put it off because, well, you know, I'll feel better tomorrow or it's not too bad. But you make a very valid point. If you don't do something before that statute of limitations expires, you're out of luck.
Alessandro Assanti:I get a lot of people I talk to, and most of it is in the medical setting, where people tell me about things and they didn't want to deal with it. They lost a loved one and they're finally coming out of their funk. It's been a year and a half and I tell them, boy, I wish you would have consulted with me six months earlier, but they were just in the morning mode and it cost them, you know.
Charlie McDermott:Yeah, yeah. Well, alessandro, as always, very, very helpful, I know, for your listeners and viewers. For those who need help or maybe they have a friend who could use some help what's the best way for them to reach out and get in touch?
Alessandro Assanti:Absolutely. Feel free to call me at 877-245-3911. Call our offices. Our staff is always willing to help and refer you to me to discuss, or you can log on to our website at assantilawcom and that's A-S-S-A-N-T-I-L-A-Wcom. Thank you, Charlie.
Charlie McDermott:Yeah and thank you. Enjoy your weekend and we'll see you real soon in the next episode.
Alessandro Assanti:All right, Thank you everyone. Enjoy your weekend. Thanks, sir.
Intro/close:Thanks for listening to the Advocate Source. Visit AsanteLawcom or call us at 877-245-3911 to get the legal support you need. We are here to help.