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Medical Malpractice Statute of Limitations – Part 1

Part 1 in a 2-part series

By Kevin M. Miller

I have always thought that my Uncle Will would make a fantastic juror. What defense lawyer would not want him on a jury: always on task, a no-nonsense kind of guy, and a little bald on top with just enough grey around the ears to give him a look of experience. At a recent family gathering, Uncle Will and I struck up a conversation about one of his favorite topics: my involvement in the legal profession.

“Why do your cases take so long to resolve,” Uncle Will asked me. “Your last trial took place five years after the medical treatment by your client. I thought it was a rule of Two-Years-Or-Done?”

“That two year rule you’re thinking of is a Statute of Limitations,” I replied. “In my recent case, we had to wait a good deal of time for the plaintiff even to file suit. As a general rule, patients have two years from the time of an injury to place the lawsuit on file. This gives them ample time to seek out a lawyer, talk to medical consultants and assess their damages before having to make a decision on whether to sue or not.”

“Two years from the time an injury is caused seems to me to be something hard to define.”

“It can be hard to define,” I replied. “In my recent case, the issue was whether the doctor should have diagnosed cancer sooner. Clearly the doctor didn’t give the patient his cancer, and in that respect didn’t cause any injury at all. But courts have held that once the patient learns or reasonably should know that his condition is ‘wrongfully caused,’ the two year clock starts ticking. We call it the Discovery Rule. So when a patient learns that he has cancer and is told that a CT scan taken a year and a half earlier probably showed the condition but was misread as negative, that’s the point where the law says he now knows his condition is wrongfully caused: a proper reading of the earlier CT scan would have lead to earlier treatment and a better outcome. The statute of limitations starts to run not when the CT scan is misread, but when the patient learns of his ‘injury’ or that the condition was wrongfully caused, even though that’s one and a half years after the CT scan was taken. All in all, the patient could take three and a half years from the time of his CT scan to file suit and still be timely: one and a half years could go by before he discovers his injury, and then the statute of limitations begins to run, giving him an additional two years from that point to file his suit.”

“Eventually, though, shouldn’t there be a limit on how long the Discovery Rule allows from the time of treatment?” he asked. “If you don’t put an end to things, witnesses’ recollection of the events will get stale, and evidence could become hard to locate. And that’s hardly fair to a defendant doctor to ask him to come into court and defend himself on an occurrence that took place years ago.”

“Exactly!” I said. “Now you’re on to the Statute of Repose. The repose statute puts a final limit on things like the Discovery Rule, stating that once we reach four years from the allegedly negligent treatment, the right to file a suit is cut off no matter what. Once we get to the point of four years beyond the point of treatment, if a lawsuit is not on file there’s no right to bring a case any more, even if the plaintiff hasn’t yet discovered that his injury was wrongfully caused.”

“I think I got it,” said Uncle Will. “So if a sponge in surgery gets left behind in a patient’s abdomen in year 2005, and it doesn’t show up on an x-ray until 2010, it’s too late to bring a lawsuit about it in 2010, 2011, 2012?”

“You got it right. In that event the four year Statute of Repose had cut off the right to bring an action even before the patient discovered his retained sponge and before the Statute of Limitations began to run.”

“Nice,” said Uncle Will. “I like it. I should be a juror someday.”

“I don’t know about that, Uncle Will. Something tells me you’d make an even better judge.”

Part 2 of this 2-part series can be found here: Medical Malpractice Statute of Limitation – Part 2

For additional information, see Laura Petersen‘s article: Statute of Limitation Updates in Medical Cases

Originally published in the Summer 2012 edition of the Quinn Quarterly.

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