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Medical Malpractice Statute of Limitations – Part 2

Part 2 of a 2-Part Series

By Kevin M. Miller

Everyone who ever met my Uncle Will admired him. He was the kind of man who always had the right tools and a pick-up truck when you needed help. He sang a strong bass in the choir. He knew everything there was to know about baseball. And when it came to competitiveness, no one was more fair than Uncle Will. So it did not altogether surprise me when Uncle Will had a few questions for me about the in’s and out’s of the legal profession.

“They say Lady Justice is blind, and that she treats everyone the same, but I’m not sure that’s always the right thing to do,” he started. “I know that the typical patient who feels he is the victim of medical malpractice has two years from the time he is injured to bring a lawsuit; but sometimes, some people shouldn’t be held to the same rules that apply to the rest of us.”

Thinking I knew where this might lead, as urged him on. “C’mon Uncle Will. Two years is plenty of time to get your act together, find a lawyer and pursue your rights once you come to the awareness that you may have been injured.”

“Perhaps for you and me, that’s true,” he said. “But you can’t say that for a child. I could seek out a lawyer in a timely manner as easily as the next guy but a child can’t.”

“Good point, Uncle Will. As a matter of fact, when it comes to a statute of limitations, the law does treat children differently that adults,” I replied.

“How so?”

“If a person entitled to bring the lawsuit is under the age of 18 years, he has until two years after his eighteenth birthday to bring his lawsuit. That’s still subject to the 8- year statute of repose I told you about before. So if a patient believes he is injured at age 16 . . .”

“He has until age 20 to file his lawsuit,” volunteered Uncle Will.

“That’s right. And if the patient is injured at age 4, he doesn’t have until his twentieth birthday to file suit–”

“Right, because the 8-year statute of repose ends the time to file at age 12 for that four-year old youngster,” Uncle Will surmised. “Are there other such exceptions for any other classes of people who might need more time?”

“Sure. In fact, the law gives anyone who is under a legal disability the time up until he particular disability is removed, plus two years, to file suit. Subject to the 8-year repose limit, of course. Other disabilities, other than being under-age include mental disabilities, being imprisoned at the time the cause of action accrues, and in some instances, military service. All of these people would of course find it difficult to seek out legal advice, so the law affords them extra time.”

“What if the would-be plaintiff is both a minor AND suffers a legal disability?”

“In that extraordinary case, Uncle Will, neither the 2-year statute of limitations, nor the 8-year statute of repose starts to run until both such disabilities are removed. That usually means there would be no time limit imposed upon such a person at all.”

After some contemplation, Uncle Will gave me his response: “That only seems fair.”


Part 1 of this 2-part series can be found here: Medical Malpractice Statute of Limitations – Part 1

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

Originally published in the Fall 2012 edition of Quinn Quarterly.

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