Question: Billy underwent a tonsillectomy at age 8 years. Unbeknownst to him and his parents, a tiny surgical clip had slipped down the trachea during surgery. Billy was largely asymptomatic until age 20, when he began to develop recurrent respiratory infections and asthma. X-rays eventually identified a foreign body in his right lung. He filed a malpractice lawsuit when he turned 23, and the case was dismissed because the statute of limitations had lapsed. On appeal, which of the following is best?
Dr. S.Y. Tan
A. The statute of limitations usually requires all malpractice lawsuits to be filed within 2 years of the negligent act.
B. In the case of minors, disability, and concealment, the statute may be tolled, thereby giving the plaintiff more time to file a claim.
C. The statute starts to run when the cause of action accrues, i.e., when the claimant knew or should have known of the injury.
D. B and C are correct
E. A, B, and C are correct
Answer: D. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called "doctrine of latches" that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, that is, relieving him or her from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. The statute of limitations does not start to run from the date of the negligent act or omission, but from the time of reasonable discovery of the damage. For example, if there is a failure to diagnose and treat a cancerous condition in a timely manner and the patient suffers harm several years later, time starts to run from the date of discovering the injury, not the date of misdiagnosis.
In malpractice cases involving minors, the running of the time period is tolled, that is, halted, until the minor reaches a certain age, commonly the age of majority. Chaffin v. Nicosia dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.
Patients who are injured from malpractice might not always be aware that a negligent act had taken place or that it had caused the injury. And some injuries might remain latent for a long time. Recognizing this, all statutes of limitations emphasize the date when the plaintiff first discovered that the injury was the result of the act or omission of the healthcare provider. This is termed the discovery rule. Stated more formally, the limitation period commences at the time the cause of action "accrues," and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).
There may be other statutory prescriptions. For example, Ohio, which has a 1-year statute of limitations, provides that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship finally terminates. In cases of fraudulent concealment of a right of action, the statute may be tolled during the period of concealment. Tolling also might apply during legal disability or in case of retained surgical instrument or sponge.