The plaintiff has a fixed period of time to file the claim in civil cases. This is called the statute of limitations. In many states, medical malpractice cases must be filed within 2 years. Perhaps the longest statutes of limitations are in certain types of conspiracy cases. Private cases brought under the Racketeering Influenced Corrupt Organizations Act (RICO) laws can involve incidents back 10 years. Any claim filed after the statute of limitations has run will be dismissed.

In many cases, the plaintiff does not know about the negligence at the time it occurs. For example, if a surgeon leaves a pair of forceps in the patient, the patient might not know about it for months or years. In other cases, the patient cannot know until some other condition occurs, such as Rh sensitization that might not show up until the patient is pregnant again. Toxic exposure cases pose the problem of whether the statute runs from when the victim was exposed, or when the disease occurs. To avoid injustice in these cases, the courts developed the discovery rule, holding that the statute of limitations would not run until the patient knew, or should have known, of the injury. [Gaither v. City Hosp., Inc., 487 S.E.2d 901 (W. Va. 1997) ] Many states, however, have abolished the discovery rule as part of tort reform. In one case under these tort reform rules, a gynecologist did a PAP smear on a patient and told her she would be informed if the test was abnormal. The test did come back abnormal, but the physician’s office staff filed it without telling the physician. Four years later she had a pelvic examination and was found to have stage IIb cancer of the endocervix. The court ruled that the statute of limitations had run and the plaintiff’s complaint must be dismissed, even though there was no way for the plaintiff to have known of the negligence.