Malpractice consult: What urologists need to know about statutes of limitations

Kenton H. Steele, Esq

How much time after the occurrence of alleged malpractice does a patient have to file a lawsuit?

As with many things in the medical-legal world, the answer is, “It depends.” However, some general principles may provide an understanding of what a statute of limitations is and how it functions. This article sets out these general principles and provides an overview of some legal doctrines that can impact the time a patient has to file suit in the event of alleged malpractice.

What is a statute of limitations?

Like all lawsuits, a claim alleging medical care was negligently provided must be filed within a specified period of time after the event that is the basis of the lawsuit. The law that creates this deadline is a “statute of limitations.” A lawsuit filed after the applicable statute of limitations has passed can be dismissed without considering the merits of the case.

Although dismissing a meritorious claim simply because it is too late may seem harsh, statutes of limitations serve useful functions. First, disputes should be raised and resolved in a timely manner. If a person has a grievance requiring court intervention, that grievance should be raised within a reasonable time. Also, as years pass, key witnesses forget and important evidence is lost. Imagine a malpractice lawsuit based on care provided in 2010. What is the likelihood the physician remembers the patient? Will complete records be available?

Allowing “stale” claims could make it impossible for the accused to prove their innocence.

The length of time provided by a statute of limitations on malpractice claims varies from state to state. Most states have limitations periods that fall somewhere between 1 and 3 years. The time limit on malpractice claims is typically shorter than on other types of claims. For example, a claim based on a breach of contract can be made a decade or more after the contract was created. Part of the explanation for this difference is the ongoing effort to control the rising cost of malpractice insurance and health care in general—the thinking being that if the time to bring a malpractice claim is reduced, there will be fewer claims. If there are fewer malpractice claims, the cost of insuring against this type of claim should be lower. The effectiveness of this approach is the subject of ongoing debate.

The discovery rule

Knowing the length of a limitations period is only half of the equation for determining the date by which a claim must be filed. The other half is identifying when the timer starts. In a case involving a car crash, the statute of limitations clock begins to countdown immediately after the vehicles collide. However, an injury resulting from medical care may not become apparent until years after the treatment occurs. This gap in time between care being provided and an injury arising has led courts to adopt “the discovery rule.” Under this rule, the time limit to bring a malpractice suit does not begin counting down until the injured person discovers or reasonably should have discovered the injury.

The continuous treatment rule

The statute of limitations can also be extended by the “continuous treatment rule.” Under this rule, the time limit to bring a claim against a physician does not begin to run until that practitioner ends treatment for the specific issue that is the basis of the claim. For instance, if a surgeon in a state with a 2-year statute of limitations commits an error during surgery and continues to provide care and treatment to the patient for a year following the procedure, the patient will have 2 years from the last date of treatment to file suit. This rule serves a salutary function. In the event of a medical error, the practitioner can work to remediate the mistake without forcing the patient to choose between continuing treatment or filing a lawsuit. Similarly, patients are protected from unscrupulous practitioners who could inaccurately lead injured patients to believe their condition will improve until the limitations period has expired.

Conclusion

Limits on the time to bring a claim in court are as old as the justice system itself. Understanding these restrictions may allow urologists and other practitioners to quell their concerns that an unhappy patient from the past will reappear as a plaintiff in a lawsuit. That being said, practitioners should consult with an attorney in their jurisdiction if they have specific questions about whether possible claims may be time-barred.

Steele is an attorney in the Columbus, Ohio, office of Reminger Co, LPA. He specializes in malpractice defense and insurance litigation. Please contact him at KSteele@reminger.com with any feedback or comments on this column