| Statutes of limitation on their surface may seem simple | | | | year "outside limitation." The California medical |
| to apply and there are many locations on the web | | | | malpractice statute of limitations provides that actions |
| where those who consider that they have legal rights | | | | against health care providers must be filed within 1 |
| may look to find the state statute of limitations which | | | | year of the date that the malpractice victim discovers |
| applies to their claim. Half of those who are likely to | | | | or reasonably should have "discovered his cause of |
| look up this information want to find out if the statute | | | | action; but even if the cause of action is not |
| of limitations has expired on their case. The other half | | | | discovered, and even where it could not have been |
| may want to assure themselves that they have plenty | | | | discovered, the action is barred after the passing of |
| of time left on their statute of limitations so they can | | | | three years from the date of the malpractice. |
| attend to matters more pressing matters than the | | | | Let's take a couple of real cases, prosecuted by the |
| lawsuit, such as seeking out the right medical care and | | | | author of this article. In the first, an expectant mother |
| concentrating on their rehabilitation. | | | | sought the care of a physician who dispensed to her a |
| This is not an article intended to advise you about the | | | | sedative as recommended by a well known drug |
| statute of limitations which might be applicable to your | | | | manufacturer. The drug caused the mother no side |
| case. To the contrary, and much more important for | | | | effects, but her child was born with serious limb |
| you to learn right now, the purpose of this article is to | | | | defects. The drug was later identified in the press |
| urge that you not to look up the statute of limitations | | | | world wide as a potent teratogenic, although by its |
| yourself. Instead you should seek the advice of a | | | | European name, not by the brand name under which it |
| competent and knowledgeable lawyer in your state to | | | | was dispensed in the United States, and so the mother |
| advise you with regard to the statute of limitations, as | | | | had no idea that it was the drug that caused her |
| well as other statutes providing time sensitive rules that | | | | daughter's limb defects. The child was born in 1962, |
| may deprive you of your right to sue long before last | | | | and she showed up at our law offices an adult, 29 |
| day to file suit provided by the statute of limitations. If | | | | years later. In the meantime, the first special California |
| you want correct information, you will require counsel | | | | medical malpractice statute of limitations was enacted |
| fully knowledgeable about your state statute of | | | | in 1970, providing a 1 year discovery rule and most |
| limitations including how it has been interpreted by your | | | | significant here, a 4 year outside limitation. The mother |
| state courts of appeals in the volumes of pertinent | | | | hadn't filed suit during the girl's minority, and the girl, now |
| case law, knowledgeable also about the exceptions to | | | | a young woman, didn't file her case within the four |
| the statutes of limitation, and the other legal theories | | | | years. In 1975 a second version of the malpractice |
| which can undercut the statute of limitations defense. | | | | statute was enacted, providing for a three year |
| We will try to highlight the dangers of your simply | | | | outside rule statute of limitations. Because the young |
| looking up the statute of limitations applicable to your | | | | woman was still unaware of the cause of her birth |
| type of case and then making decisions on your own | | | | defects again this three year time passed without her |
| that your case is barred and your rights lost, or that | | | | filing suit. |
| you can safely delay filing your complaint to attend to | | | | When the woman described her injuries to this author, |
| more pressing matters. | | | | they seemed to coincide with the injuries caused by |
| As examples, we will explore the two most common | | | | the potent teratogen, and so we obtained the list of |
| statute of limitations questions we receive, the first | | | | physicians to whom the drug company supplied the |
| inquiring about the statute of limitations in auto accident | | | | drug. Her mother's physician, it turned out, was one of |
| cases, a common question just because there is more | | | | them. |
| accident litigation than any other type of litigation. It is a | | | | But relevant here, the solution to the medical |
| good question to select also because people might | | | | malpractice statute of limitations was to file a complaint |
| think it so straightforward that anyone should be able | | | | alleging that the physician "intentionally concealed" his |
| to correctly interpret the statute of limitations. The | | | | malpractice from the mother and child, intentional |
| second example is the inquiry about the statute of | | | | concealment being the antidote to the medical |
| limitations in medical malpractice litigation, common | | | | malpractice statute of limitations defense. The author |
| because in many states the medical and insurance | | | | had to fight this out in court, first to defeat the |
| industries have obtained special interest "tort reform" | | | | physician's and drug company's demurrer to the |
| legislation commonly including more restrictive statutes | | | | complaint and then in overcoming their motions of both |
| of limitation with "outside limitations," also permitting us | | | | for summary judgment. But upon succeeding on those |
| to discuss a "discovery rule." | | | | motions, the defendants settled the case for |
| There are both federal and state statutes of limitation | | | | $1,500,000.00, which was compensation this young |
| with most cases arising in the state court systems and | | | | woman would not have received if she had just |
| so we will pick the 2 year statute of limitation for | | | | looked up the California statute of limitations and |
| injuries sustained in auto accidents, and the 1 year | | | | decided that her case was time-barred. |
| discovery rule and 4 year outside rule applicable to | | | | Now to take a medical malpractice case in which if the |
| medical malpractice cases under California law. Again | | | | clients had considered the 1 year discovery rule they |
| this is not to provide information for you to rely upon in | | | | would surely have concluded that they had waited too |
| deciding whether your claim is barred, or conversely to | | | | long to sue. In this case, the author of this article |
| lull you to feel you can safely delay filing suit while you | | | | represented 10 clients, all of whom discovered their |
| attend to more pressing matters. Rather, it is to | | | | causes of action against three physicians and a |
| demonstrate why you should not attempt to interpret | | | | hospital much longer than 1 year prior to the filing of |
| even what might seem to be the most straightforward | | | | their complaints. Indeed, all readily admitted at their |
| of statutes of limitation. Leave the interpretation of | | | | depositions that they had known of their physicians |
| statutes of limitations to the lawyers. Attorneys will be | | | | malpractice and their physical harm from the |
| pleased to speak with you about you case. Just ask | | | | malpractice more than a year prior to coming to this |
| for a free case consultation. | | | | author for representation. This again led the attorneys |
| So, let's imagine that through your research you | | | | for the defendant physicians and hospital to file |
| discover that California has a 2 year statute of | | | | motions for summary judgment on the grounds that |
| limitations applicable to auto accidents. What I would | | | | the 1 year discovery rule set forth in the California |
| hope to demonstrate here is that this is very | | | | medical malpractice statute of limitations had passed. |
| dangerous information for the injured auto accident | | | | But your author had anticipated that the statute of |
| victim to rely upon, one who might have been | | | | limitations defense would be vigorously asserted, and |
| paralyzed, or brained damaged or who might have | | | | so we alleged in the complaint that the physicians and |
| suffered debilitating internal injuries, catastrophic | | | | hospital were "co-conspirators." Conspiracy is a legal |
| orthopedic injuries or a limb amputation. He or she may | | | | theory little used by most lawyers, but it has many |
| read about the 2 year statute of limitations and be | | | | advantages, including to avoid the bar of the statute of |
| lulled into waiting to file suit, for example to deal with | | | | limitations. It is also a relatively easy theory to prove in |
| the medical decisions and rehabilitation, or in smaller | | | | many cases, simply that one or more people |
| cases perhaps to see if his injury might resolve. | | | | "concurred" to do something that was "wrongful," and |
| If he delays even just a few months, the injured auto | | | | that one of them committed an act in furtherance of |
| accident victim can suffer the loss of his case or may | | | | the conspiracy. And if the lawyer can establish just |
| lose the right to sue his primary defendant and all or | | | | these few facts, then the rule is that the statute of |
| most of what he might have recovered in his case if | | | | limitations on the substantive causes of action, like |
| he had only acted promptly. This may occur, for | | | | medical malpractice, will not "commence to run," |
| example, where there are other provisions of law | | | | meaning that the time period will not begin to run, until |
| providing much shorter periods than the statute of | | | | "the last overt act in furtherance of the conspiracy." |
| limitations within which the accident victim must act to | | | | As was also easily established, two of the three |
| preserve his right to sue. One example of such laws | | | | defendant doctors were still involved in providing their |
| existing in many states, including California, is the | | | | patients the same below standard medical care, |
| "government claims provisions." These requirements | | | | continuing "overt acts" in furtherance of the conspiracy |
| apply in a wide variety of auto accident cases, for | | | | through the date when your author sued them, and so |
| example where a contributing cause of the accident is | | | | the Court rejected the defendants motions for |
| a road design defect or failure to properly maintain a | | | | summary judgment, permitting the cases to go to trial |
| roadway. The government claims provisions would | | | | against all 3 doctors and the hospital. The author tried |
| also apply if the driver who hit you was a city or | | | | the cases of 5 of his 10 clients in a single consolidated |
| county or state employee at the time of the accident, | | | | 4 month medical and hospital malpractice trial, obtaining |
| operating his car in the course and scope of his | | | | a 2.9 million dollar jury verdict, including a 1.9 million dollar |
| employment. | | | | punitive damage verdict against the hospital. |
| In each of these cases the injured auto accident victim | | | | Again, if these clients had merely considered the text |
| must file a government claim with the city or county or | | | | of the California medical malpractice statute of |
| state within 6 months, a time period obviously much | | | | limitations, they likely would have come to the |
| shorter than the 2 year California statute of limitations | | | | conclusion that the 1 year discovery rule barred them |
| applicable in auto accident cases. | | | | from filing suit. We discuss the subject more fully on |
| In the example of the driver who turned out to be a | | | | our "California statute of limitations", page, but the |
| government employee, yes, of course, you might still | | | | purpose there as it is here is not to make you wiser in |
| sue the driver of the car, but if he has a 15/30,000 | | | | interpreting statutes of limitations. There are literally |
| dollar auto insurance liability policy, that will be of little | | | | volumes upon volumes of case law interpreting the |
| consolation to the brain damaged or paraplegic plaintiff. | | | | nuances statutes of limitations, their exceptions and |
| On the other hand, if the same man or woman had | | | | defenses. |
| consulted an appropriately qualified lawyer, the lawyer | | | | No, the purpose is the opposite, to warn you not to |
| would have recognized the need to timely file the | | | | decide for yourself that your claim is barred by the |
| government claim within 6 months of the date of the | | | | statute or limitation, or the contrary, that you can safely |
| accident, and he would have followed the other claims | | | | wait for a year or two before filing your legal action. |
| procedures essential to file suit against a public entity. | | | | Statute of limitations analyses, and the related |
| The client could then have obtained full recovery for | | | | analyses such as those described above, which might |
| his injury, his general damages, his pain and suffering, | | | | lead to a client losing his rights earlier than the date |
| his damages for loss of enjoyment of life, his past and | | | | provided by the statute of limitations, or the opposite, |
| future medical expenses, and full recompense for his | | | | providing the exception or otherwise delaying the |
| past and future earnings losses. | | | | commencement or extending the statute of limitations, |
| Turning now to the statute of limitations for medical | | | | permitting what might have appeared a dead claim to |
| malpractice, and why we urge that you should not | | | | find its day in court, should wisely be deferred to |
| attempt to interpret it, apply it, act upon it or fail to act | | | | competent, highly experienced and knowledgeable |
| upon it without first obtaining competent legal advice, | | | | lawyers. |
| lets consider California's 1 year "discovery rule," and 3 | | | | |