Malpractice Consult

By Lee J. Johnson, JD

Statutes of limitations may offer a lot less protection

Let's say a patient alleges that you treated her negligently more than a decade ago. A lawsuit like this is usually tossed out before trial, regardless of its merits, because the statute of limitations in most states says that a plaintiff must bring a malpractice case within two to three years of the incident.

The reasoning is that it's unfair to expect someone to defend a "stale" case when it's likely that records may be lost or discarded, witnesses have moved away, and memories have faded.

But there have long been exceptions to that basic rule. For instance, courts usually allow plaintiffs two to three years after they learned that the injury was caused by negligence, even if the incident itself occurred many years before that.

And minors usually have until the age of majority plus the two to three statutory years for their own personal injuries. Now, however, some courts are going much further in extending the window when minors can file suit, making it difficult for a physician to know whether he's ever free of liability.

For example, a divided New Jersey Supreme Court ruled earlier this year that minors whose parents die as the result of malpractice have until age 20 to file suit, even though the state's Wrongful Death Act states that all lawsuits must be brought within two years of the death.

The case involved a man who went to a hospital ER, complaining of extreme pain in his shoulder and chest. He was diagnosed with a pulled muscle and discharged. He died several days later from a massive bacterial infection in his chest cavity.

The family's attorney didn't file a wrongful death action on behalf of the widow and her three children until two years and 27 days after the death. A trial judge dismissed the widow's claim as being barred by the statute of limitations, but allowed the claims filed on behalf of the children to continue.

In a controversial decision, the New Jersey Supreme Court ruled 5-2 that the trial judge was correct. The majority concluded that the legislature didn't intend to preclude a child's right to sue, despite the law's seemingly clear language. The majority opinion included a hypothetical example of a father and his 5-year-old son who are struck by a car while crossing a street. The father is killed and the boy, his sole next of kin, is severely injured. The child has until his majority to file suit for his personal injuries, and should have the same leeway to file a wrongful death claim regarding his father.

"We do not believe that the Legislature would have intended that the wrongful death claim be barred," the court said. "Although a literal reading of the act might suggest a different result, consideration of fairness and equity convince us that the true legislative intent is otherwise." Principles of fairness and justice must take precedence over "a compendium of mechanical rules that is too narrow and too technical."

A dissenting justice said the law and the legislature's intent couldn't be clearer, and it is the role of the legislature and not the courts to provide any needed relief. Besides, the justice continued, the children would have a valid claim of legal malpractice against the plaintiff's attorney for missing the two-year deadline for filing the wrongful death suit.

The lesson for physicians is that you can never be absolutely certain that you'll be free from an ancient lawsuit. Therefore, especially if you practice in New Jersey, it pays to maintain your patient records for as long as possible, perhaps indefinitely, to help you defend a lawsuit that might be filed decades after you've treated a patient.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

Lee Johnson. Malpractice Consult.

Medical Economics

2001;14:93.