Note: This summary of general and state-specific medical malpractice law is highly condensed and omits substantial important information. You should in no way rely on it in determining whether you have a claim for medical malpractice, or in determining how to pursue your claim. This material is intended solely as a guide and cannot replace the services of a qualified medical malpractice attorney. Your reliance upon any of the following material is strictly at your own risk.
The primary purpose of statutes of limitations is to protect individuals against claims brought after a period of time that the legislature deems to be sufficient for a person of ordinary diligence to have brought an action. In this manner, defendants are protected from faded memories, lost evidence, missing witnesses, and other mishaps that may occur over time. Additionally, statutes of limitations encourage promptness in instituting actions and spare the courts from the litigation of stale claims.
The majority of states have enacted specific statutes of limitations for malpractice actions. These statutes make specific mention of the word "malpractice," or use phrases such as "health care providers," "medical injury," or "failure to cure," or simply list possible individual defendants such as "physicians, surgeons, dentists, podiatrists, chiropractors, laboratory technicians," or corporate defendants such as "hospitals, sanitariums, nursing homes, clinics, licensed health care facility, or dispensary." The words may differ, but all of these statutes use language that refers unmistakably and exclusively to medical negligence actions.
Most malpractice statutes of limitations set the limit for bringing a cause of action at two years. Because this limitation period is so short, plaintiffs will often try to avoid the application of the medical malpractice statute of limitations. One way that plaintiffs seek to avoid the malpractice statute of limitations is to assert that the general negligence statute of limitations, which is usually longer, applies. However, under general rules of statutory construction, if two statutes treat the same subject matter, and one statute is general but the other is specific, the specific provision controls. Thus, the medical malpractice statute of limitations will take precedence over the negligence statute of limitations.
Plaintiffs may also try to avoid the medical malpractice statute of limitations by asserting that the statute of limitations does not apply to the negligence of the particular defendant. For example, some courts construe the term malpractice narrowly, holding that it refers only to members of the medical profession, and excluding nurses. In response to the confusion in defining to whom the medical malpractice statutes of limitations apply, some statutes are very specific. Many state statutes specifically define "health care personnel" or "health care providers," alleviating some of the problems.
Historically, a cause of action for malpractice accrues at the time of the medical negligence. That is, the wrongful act or omission of the medical personnel initiates the running of the statutory period.
The negligent act or omission rule can produce harsh results for the plaintiff. Both courts and legislatures recognize that it not infrequently leads to injustice in the individual case. For example, in several jurisdictions if the injury occurs after a course of treatment, with no specific medical act that can be held accountable, the action accrues as of the date of termination of the treatment. However, once a particular act or episode can be identified as the cause of injury the statute begins to run as of the time of that act; subsequent treatment which does not aggravate the injury has no effect on the limitation period. Moreover, in the rather large group of cases involving foreign bodies--i.e., sponges or surgical instruments inadvertently left within the patient on the closing of the operative incision--if accrual of the cause of action is held to be the time of conclusion of the surgery, the statute of limitations may well have run its entire course before the patient feels any unusual effects from the foreign object. In many cases the patient would be barred even before he or she learned of the existence of the object in his or her body. Court decisions and legislative enactments in many states, as a result, soften the harshness of the negligent act or omission rule by excepting cases involving foreign objects.
Perhaps the greatest recent change in malpractice law is the increase in acceptance of the so-called "discovery doctrine." Under this rule, the running of the statutory limitation period in malpractice cases is initiated, not by the underlying negligence, but by the patient's "discovery" that he or she has been injured by medical treatment.
The statute will not begin to run until the plaintiff discovers, or reasonably should have discovered, the existence of the essential elements to the cause of action. Whether by legislative act or judicial decision, almost all the states apply the date of discovery principles to malpractice actions. Some jurisdictions limit the application of the doctrine to cases involving foreign objects left in patients during surgical procedures. Even in the remaining jurisdictions, the inflexibility of the strict rule, the time of negligent act as the time of accrual, is likely to be ameliorated soon.
In some states the time of accrual of a malpractice action is the date of the wrongful act of the health care provider.
The so-called "continuous treatment" rule as generally formulated is that if the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated -- unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.
In a minority of jurisdictions, the courts distinguish the continuing treatment doctrine from the doctrine of "continuous negligent medical treatment." In these states, the latter doctrine is recognized as a valid basis for bringing a cause of action alleging medical malpractice, while the former doctrine is not recognized as a valid basis for such an action. They point out that under the continuing treatment doctrine, the statute of limitations begins to run at the end of a course of treatment for a condition brought about by a prior negligent act, whether or not the continuous treatment is also negligent. On the other hand, under the doctrine of continuous negligent medical treatment, the statute of limitations runs from the last act in a "continuum of negligent medical care related to a single condition occasioned by negligence." The difference between the two doctrines, for statute of limitations purposes, is that under the doctrine of continuous negligent medical treatment the focus is limited to the last act in the negligent continuum, not the last act of any treatment. A complainant invoking the continuous negligent medical treatment doctrine has the burden of alleging with particularity a course of continuing negligent medical treatment over a finite period of time. The facts in the record must then establish that the treatment was inextricably related so as to constitute one continuing wrong. The "last act" which commences the running of the statutory period of limitations, in a claim based upon continuous negligent medical treatment, must be an affirmative happening or event.
Over the years, courts and legislatures have developed certain tolling principles to ameliorate the sometimes harsh effects of the statute of limitations. One commonly accepted tolling doctrine is the tolling of the medical malpractice statute of limitations because of fraudulent concealment, which is concealment by a physician of facts that would apprise a patient that he has a cause of action for negligence or malpractice. In a significant number of states the medical malpractice statutes themselves contain such a tolling provision, while in many other states a similar provision applies generally to all tort cases involving the limitation period. In almost all jurisdictions without a specific statutory provision of this kind the courts would, on general equitable principles, extend or postpone running of the statute. Although an occasional and older isolated opinion has been handed down holding that fraudulent concealment does not toll the statute, the practically universal rule is that deliberate acts of deception by a defendant calculated to conceal from a potential plaintiff that he has a cause of action, thereby inducing him to postpone institution of suit, will be held to toll the statute.
Some courts, because of the fiduciary character of the physician-patient relationship, have held that mere silence or non-disclosure by the physician, where there is a duty to disclose either his negligent act or at least the fact that an injury has occurred, constitutes fraudulent concealment. However, most courts require something more than mere silence on the part of the physician; silence of itself does not import deliberate concealment. The term "fraudulent concealment" implies an intentional hiding or misrepresentation of material facts -- a deliberate deception. The burden of proof, of course, is on the plaintiff to establish the deceitful conduct by clear, precise and convincing evidence. Usually, he must adduce evidence that the physician not only failed to disclose the injury or the negligence that caused it, but also that he knew the pertinent facts, or should have known them, and in addition some courts have required a showing that the plaintiff exercised reasonable diligence to determine his condition.
In determining whether the physician's conduct amounts to fraudulent concealment, the decision often depends on the interpretation of the words used by him in answer to the patient's inquiries or in explanation of his symptoms or complaints. Thus, repeated optimistic assurances that the patient would be all right, that his present symptoms or disability would improve, clear up, disappear, or subside in time, or that "there is no cause for concern," have all been held to constitute fraudulent concealment, where the defendant was aware that he had been negligent and that the resultant injuries were probably permanent.
Conduct that has been held not to toll the statute includes acts of deception by persons other than the defendant and nondisclosure to a patient who knows of his injury or has reason to know that he has a cause of action. Courts are unanimous in holding that evidence of deliberate withholding of a patient's hospital records is sufficient to establish fraudulent concealment, where such records contain facts which would alert the patient to the potential malpractice action.