Most physicians are generally aware that a patient has a fixed amount of time to file a lawsuit. If not filed, then the patient, now a plaintiff, loses that right.
There are two “statutes” that set the clock.
The first is statute of limitations. There, the clock starts running when the injury is discovered or should have been discovered.
If the patient has surgery, and develops horrible complications during the operation, arguably, the statute of limitations starts running that day. The injury was obvious. And presumably, negligence would likewise “be obvious.”
If a patient develops a complication three months after the surgery, then they likely discovered (or should have discovered) the problem. So, the clock starts ticking then.
Do plaintiffs have unlimited time to make a claim if they reasonably needed years to learn of their injury (and of the negligence)?
No.
That’s where the statute of repose comes in.
The statute of repose sets a “final” deadline to file a lawsuit, regardless of when the injury was discovered. The time limit usually starts on the date of the alleged negligent care.
If the statute of repose is three years, then that hard deadline is three years from the date of surgery, even if it took four years for the patient to learn of the problem. Even if the patient learned of the problem on exactly four years post-op, and filed his lawsuit the following day.
The statute of repose is the definitive deadline for the doctor to conclude “the coast is clear.”
In California, for example, the statute of limitations is one year. The statute of repose is three years. And California allows for an extension of 90 days if a letter of intent to sue is sent prior to the one-year deadline.
In many situations, the patient will have discovered a problem immediately after surgery. In other cases, it may take longer. The key question is when did they discover or should have discovered the problem. The clock starts then. In California, they then have one year to file.
But the analysis does not stop there. If three years have elapsed from the triggering event (e.g. surgery), then the clock runs out at three years, no matter when the patient discovered the injury.
As with many laws, there are exceptions.
In California, if a medical instrument is left in the patient’s body, that statute of repose is 10 years. And then they still have one year to file from date of learning of the misplaced instrument.
In California, again, if the doctor intentionally concealed the negligence (fraud), the statute of repose is tolled (extended), and the statute of limitations is still one year.
Finally, the statutes of limitations and repose are “defenses.” They do not prevent a plaintiff from filing a lawsuit. But they are affirmative defenses used to get the case dismissed.
In many situations, the statute of limitations will control. As the patient often learns of a problem quickly. Still, remember there are two statutes in play before concluding that a legal case is not viable.
What do you think?
