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?
You did not mention pediatric cases where it may be till the age of majority plus 2 years.
It seems like medicine is on of the few areas selected out for special treatment.
Can we sue a plumber 10 years later, when we find out that the reason the sink was running slowly for years, (and we complained about it to successive plumbers), was because the drain was installed upside down. The lack of diagnosis really did occur.
Multiple plumbers, multiple years, hundreds of dollars, literally down the drain (no pun intended).
What about car repair shops that negligently band aid a problem and never actually fix the issue?
Years go by before a sharp mechanic finds the real problem.
Medicine stands out seemingly alone where the period of time to file a claim for a tort, is artificially stretched far beyond any reasonable point, and inconsistent to other professions.
Tail insurance that has to cover one for not just 2 years but potentially for decades, costing more than a regular year’s premium.
How about a new law that limits all liability for all types, medical and otherwise to one year. No exceptions. That would limit the ambulance chasing by attorneys. It would give physicians some piece of mind.
Attorneys sue people for a living.
But living under the shadow of a malpractice case forever changes the physician, his relationships with family, friends, patients. Such cases also cause untold stress on the physician.
To be clear, no physician, wakes up in the morning, and says, “I will commit malpractice today”.
Accidents happen. Patients need to be compensated for damages. But a no fault system would be far better, and less expensive.
Three doctor panels as mandatory to determine if malpractice really occurred.
Firm time limits of one year to file a claim.
Equal protection under the law should make it so that physicians are not singled out for abusive treatment under the law, extending the time beyond all reason for claiming that a tort occurred.