Statute of limitations: How it affects ED cases
Patient claims may still be timely years after their ED visit
By Staci Kusterbeck, Contributing Editor
The "discovery rule" plays an important role in many medical malpractice cases, including those arising from ED care. Under this rule, the statute of limitations does not begin to run until the patient "knew or should have known" that a viable claim exists.
The discovery rule is not unique to malpractice cases, but because the signs and symptoms of malpractice-related injury may not become obvious until years after an error was committed, it comes into play more frequently in lawsuits against health care providers than anywhere else, explains Jay C. Weaver, JD, EMT-P, a health care attorney in private practice in Somerville, MA.
Usually, it is the nature and course of the patient's illness that determines whether the plaintiff "knew or should have known" about a health care practitioner's malpractice.
"A patient who returns to the ED after discharge knows that complications have arisen, of course, but those complications may have occurred naturally, and are not necessarily the result of negligence," says Weaver. "Thus, the statute of limitations does not always begin to run simply because the patient has experienced symptoms or has sought treatment."
Some disputes over the timeliness of a medical malpractice claim have nothing to do with the patient's condition, notes Weaver. For example, one health care facility argued unsuccessfully that the hiring of an attorney to review medical records was sufficient, by itself, to begin the statute of limitations. In another case, an appeals court held that a wrongful death claim was not barred by the Wisconsin statute of limitations because the parents of the patient could not have learned about the involvement of the defendant physician until after they had sued the physicians who had treated their daughter in the ED.1
"A trial court will dismiss a malpractice claim as untimely only when there is no doubt that the plaintiff knew or should have known that a claim was viable," says Weaver.
For a statute of limitations to begin running, a patient need not know, to any degree of certainty, that a particular person caused his or her injury, or even that the injury resulted from negligence. "Rather, it begins to run once the patient acquires information that would lead a reasonable person to inquire about the possibility of negligent behavior," says Weaver.
However, a patient who knows that negligence has been committed, but refrains from filing a claim in order to determine the full extent of his injuries, will be barred from recovery if the statutory period—calculated from the time of the error—has run.2
"This puts the patient in an awkward position," says Weaver. "If he files his claim early, he may not be fully compensated for his injuries. On the other hand, if he waits too long, the statute of limitations may bar his claim entirely."
Not all states have adopted the discovery rule. In a handful of states, the statute of limitations runs from the time the medical mistake or misdiagnosis occurred, whether the patient experienced any symptoms suggesting a problem or not.
In most jurisdictions, the statute of limitations is stopped, or "tolled," during any period in which the patient is legally incompetent. When the patient is a minor, for example, the statute of limitations may not begin to run until he has reached the age of majority. "Similarly, a health care provider's fraudulent concealment of an error or medical condition may prevent the statute of limitations from running," says Weaver.
References
1. Hegarty v. Beauchaine, 249 Wis.2d 142, 638 N.W.2d 355. (Ct. App. 2001)
2. Morton v. National Medical Enterprises, 725 A.2d 462 (D.C. Ct. App. 1999)
The "discovery rule" plays an important role in many medical malpractice cases, including those arising from ED care. Under this rule, the statute of limitations does not begin to run until the patient "knew or should have known" that a viable claim exists.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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