When a medical accident occurs, many families wait for the hospital or insurer to reach out first and explain the compensation process. The attending physician may say, "We'll take care of it," or an insurance agent may keep saying, "We're still reviewing." But the clock does not stop while you wait. A claim for medical malpractice damages is subject to a statute of limitations, and once that period runs, even the clearest negligence becomes legally unenforceable. Hospitals and insurers have a reason to drag their feet. They are waiting for the limitation period to expire.

1. The Dual Structure of Medical Malpractice Limitations: 3 Years and 10 Years

Two limitation periods apply concurrently to medical malpractice damages claims (Civil Code Article 766).

(1) 3-Year Short-Term Period: From the Date You "Knew" the Damage and the Tortfeasor

If the victim or legal representative fails to file a claim within three years from the date of knowing both the damage and the tortfeasor, the claim is time-barred (Civil Code Article 766(1)). "Knowing" does not merely mean awareness that an incident occurred; it requires actual and concrete recognition of three things: (i) the existence of an unlawful tortious act, (ii) the occurrence of damage, and (iii) substantial causation between the act and the damage (Supreme Court 2019Da259371, Dec. 13, 2019). Even where malpractice is suspected, the period may not begin until causation is concretely recognized.

(2) 10-Year Long-Term Period: From the Date of the Tortious Act

Ten years after the tortious act, the claim is time-barred regardless of whether the victim was aware of the damage (Civil Code Article 766(2)). Here, "the date of the tortious act" does not mean the date of the act itself, but the date on which the damage actually materialized. The clock starts not immediately after surgery but when the harm caused by the malpractice actually surfaces (Supreme Court 2004Da71881, May 13, 2005).

(3) Whichever Period Expires First Applies

Whichever of the 3-year or 10-year period expires first extinguishes the claim. If malpractice is recognized immediately, the 3-year period becomes the issue; if damage surfaces late, the 10-year period controls.

2. Key Legal Principles to Know

(1) Starting Point of "Knowing" — Mere Suspicion Is Not Enough

Courts strictly construe the starting point of the limitation period. Mere suspicion or speculation about malpractice does not trigger the clock; concrete recognition of negligence and causation is required (Supreme Court 2006Da17539, Jul. 12, 2013). For example, where medical litigation is ongoing and negligence and causation remain disputed, the victim may not yet have concretely recognized the requisite facts (Supreme Court 2019Da259371, Dec. 13, 2019).

(2) Late-Appearing Sequelae — New Damage Means a New Starting Point

Where unforeseeable new sequelae emerge or damage expands beyond expectation, the date on which such grounds become apparent serves as a new starting point (Supreme Court 2016Da11257, Jul. 29, 2021). If symptoms initially mild become severe years after surgery, a new 3-year period begins when the worsening is confirmed. The hospital's argument that "you already knew about it then" does not necessarily prevail.

(3) Interpreting When the Damage "Materialized"

The date of the medical procedure itself is not always the starting point. Where nonunion (incomplete bone healing) persisted after surgery and the hospital merely observed for more than six months without proper additional surgery, a court rejected the hospital's limitations defense based on the second surgery date being more than 10 years prior (Busan District Court 2020GaDan314416, May 31, 2024). The precise moment of materialization can be argued favorably through expert medical opinion and records analysis.

(4) Insurance Claims: A Separate 3-Year Period Applies

Apart from a tort damages claim against the hospital (Civil Code Article 766, 3/10 years), a claim against an insurer is subject to its own 3-year limitation period under Commercial Code Article 662. The starting point for the insurance claim is, in principle, the date of the insured event — that is, the date the damage was confirmed. Delaying an insurance claim because of ongoing settlement talks or litigation with the hospital may cause the insurance claim itself to expire separately.

3. Why Hospitals Drag Out Settlement Negotiations

When hospitals say things like "under internal review," "committee review required," or "good news is coming soon," they may be employing a tactic of waiting for the limitation period to expire. But the courts have given victims a weapon against this tactic: the good-faith defense to a limitations bar.

The Supreme Court has identified five categories where invoking the statute of limitations violates good faith and constitutes abuse of right (Supreme Court 2004Da71881, May 13, 2005).

The most important is the second category: "where the debtor acted in a way that caused the creditor to believe such measures (filing suit or interrupting the limitation period) were unnecessary." Hospitals that conduct settlement negotiations and effectively create the belief that no lawsuit is needed fall into this category.

However, the good-faith defense is not unlimited. There is a strict requirement that the right be exercised within a reasonable period (up to 3 years) after the impediment is removed, and this period cannot exceed the 3-year short-term limitation under the Civil Code (Supreme Court 2014Da230535, Feb. 15, 2017). Even if you trusted the hospital's settlement attempt and waited, suit must be filed within 3 years from when negotiations broke down for the good-faith defense to apply.

4. Three Ways to Stop the Limitation Clock

There are three ways to interrupt the limitation period against the delay tactics of hospitals and insurers (Civil Code Article 168).

(1) Filing Suit

This is the most certain method. Filing suit interrupts the running of the limitation period from that point. Even where settlement negotiations are ongoing, if the limitation period is approaching, a strategy of filing suit first and continuing negotiations in parallel may be needed.

(2) Demand by Certified Mail (Choego)

If you send a certified-mail demand for damages or insurance payment before filing suit, completion of the limitation period is suspended for six months from that point (Civil Code Article 174). However, the demand must be followed by formal legal action such as filing suit within six months. The demand alone does not permanently interrupt the period.

(3) Acknowledgment by the Debtor

If the hospital or insurer engages in conduct acknowledging the duty to compensate or pay, the limitation period is interrupted (Civil Code Article 168(3)). Partial payment, an offer of installment compensation, or a document containing "acceptance of liability" qualifies. Vague responses like "under review" or "to be discussed by the committee" are not recognized as acknowledgment, so it is important to obtain clear documentation.

5. Practical Checkpoints

• If, after a medical accident, the hospital or insurer keeps responding only with "under review" or "internal discussion," the 3-year limitation clock may already be running. The date on which the damage and the tortfeasor were recognized must first be reviewed with a lawyer.

• If sequelae from surgery or treatment turned out to be far worse than initially expected, or new symptoms emerged, that date may be argued as a new starting point. Do not give up even if more than 3 years have passed since the initial incident — consult an expert (Supreme Court 2016Da11257).

• An insurance claim runs on a separate limitations track from the hospital damages suit. Even while a settlement or lawsuit with the hospital is ongoing, the 3-year period for the insurance claim (Commercial Code Article 662) must be managed separately.

• If the hospital proposed settlement and dragged things out, preserve all text messages, emails, and draft settlement agreements exchanged during the negotiation period. These are the key evidence for a good-faith defense (Supreme Court 2004Da71881, category 2).

• Even after sending certified mail, you must take follow-up action such as filing suit or applying for mediation within six months. The certified mail alone does not finalize interruption of the limitation period (Civil Code Article 174).

• Obtain and copy medical records as early as possible, regardless of when you became aware of the medical accident. Securing the originals before the hospital can amend or supplement the records becomes the evidentiary basis for the starting point argument.

Even while hospitals and insurers review the matter in good faith and with their best efforts, the limitation clock does not stop. Once you trust the words "it will be resolved if you wait" and the limitation period expires, no legal remedy remains — no matter how clear the negligence.

Our firm handles the entire medical accident case as a one-stop service together with limitation management — from analyzing the starting point of the limitation period, sending certified-mail demands, applying for preservation of medical records, to damages claims and insurance payment litigation.