Medical Malpractice

What is the Medical Malpractice Statute of Limitations in Montana?

By David Goguen, J.D., University of San Francisco School of Law
Compliance with Montana's statute of limitations is crucial to your medical malpractice lawsuit; miss the filing deadline set by this law, and your case will almost certainly be dismissed.

If you think you've been injured by a health care provider’s error in Montana, you typically have the option of filing a medical malpractice lawsuit in the state's courts. But one of your first considerations is making sure you get the case started in accordance with the filing deadline set by state law -- specifically, the statute of limitations.

A statute of limitations is a law that puts a strictly-enforced time limit on a potential plaintiff's right to have a court consider a lawsuit. There are different time limits for different kinds of cases. In this article, we'll cover the main points of the statute of limitations for medical malpractice lawsuits in Montana.

The Montana Deadline for Filing a Medical Malpractice Lawsuit

The statute of limitations for Montana medical malpractice lawsuits is set by Montana Code Annotated section 27-2-205, and it's currently in something of a state of flux. It temporarily (through June 30, 2019) sets a two-year time limit for filing any action for personal injury or death caused by the professional negligence of most health care providers and care facilities in the state.

When does the two-year clock start running? Section 27-2-205 says it's "the date of injury" (the date of the health care provider's negligent action or inaction, in other words). Alternatively, it's the date on which "the plaintiff discovers or through the use of reasonable diligence should have discovered the injury." In other words, once you actually find out (or should have known through "reasonable diligence," in the eyes of the law) that you were harmed by a health care provider's mistake, you have two years to get any medical malpractice lawsuit filed against the provider in Montana.

But keep in mind that, as the plaintiff, in order to pause the start of the two-year period beyond the date of the commission of the underlying medical error, you'll have the burden of showing that, even through "reasonable diligence," the medical error wasn't discoverable right away.

Montana also follows a five-year "statute of repose" for medical malpractice lawsuits, which serves as a larger over-arching deadline. This rule says that you can’t rely on any "reasonable diligence" extension once five years have passed since the date of the medical error. In other words, even if the medical negligence or the resulting injury wasn't discoverable through reasonable diligence, if more than five years have passed since the commission of the medical error, you're barred from filing a medical malpractice lawsuit in Montana.

One exception to this five-year statute of repose is cases involving a defendant health care provider's failure to disclose any medical error or potential harm, including through fraudulent concealment. In that situation, Montana's two-year statutory "clock" starts running once the occurrence of the medical error would have been discovered with reasonable diligence, and there's no larger five-year deadline.

(More: Do I have a medical malpractice case?)

New Three-Year Deadline As Of July 1, 2019

The text of section 27-2-205 makes clear that the two-year time limit is temporary. Beginning on July 1, 2019, any medical malpractice lawsuit filed in Montana will be subject to a three-year filing deadline, with the same "reasonable diligence" rules and the same "statute of repose" caveats covered above.

There are Exceptions to the Filing Deadline in Montana

Section 27-2-205 lays out a few situations that could bring about a different lawsuit filing deadline. For example, if the injured patient is under the age of four at the time of the alleged malpractice, then the patient (or the patient's legal representative) may file the medical malpractice lawsuit within two years of the patient's eighth birthday (or within three years of the patient's eighth birthday if the case is filed after July 1, 2019.

What If You Miss the Filing Deadline?

If you try filing your Montana medical malpractice lawsuit any time after the applicable statute of limitations deadline has passed, the health care provider you're trying to sue (the defendant) will almost certainly ask the court to dismiss your case as time-barred. And the court is sure to grant the dismissal, unless an exception to the deadline applies.

If you have questions about filing a medical malpractice case in Montana, an experienced lawyer will have the answers. Learn more about choosing the right medical malpractice lawyer.

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