Statutes of Limitations May Offer a Lot Less Protection

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Malpractice CONSULT

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. …