Friday, January 31, 2014


The statute of limitations requires that a lawsuit be filed within a given period of time or it cannot be pursued, no matter how meritorious the claim. 

For example, if you surgically remove a patient’s right leg when you were supposed to remove his left leg it would seem to be a fairly clear case of negligence on your part.  However, if the statute of limitations is one year and the patient does not file suit against you until one year and one day after the removal of the leg, then he has lost his right to sue and cannot proceed against you.  

However, the term of the statute of limitations might be extended beyond the actual term set by the statute under certain circumstances. If the patient is receiving ongoing treatment for the same condition for which the malpractice occurred, the statutory time may not begin to run until the last day for which treatment was given.  If a foreign object is left in the patient’s body, the clock may not begin to run until it is discovered.  If the patient is a minor, the clock on the statute of limitations may not begin to run until the patient becomes an adult—at the age of 18 in most jurisdictions.

In general, a statute of limitations will place a limit on the length of time that may pass before someone can sue for a particular wrong.  

Bear in mind that the statute of limitations may differ from one cause of action to another.  That issue was confronted in the Canterbury case [required reading].  Canterbury's cause of action against his surgeon was factually based on a failure of the surgeon to fully inform his patient of the risks of the proposed back surgery.  In other words, the surgeon failed to get informed consent for the procedure.

However, the Canterbury court noted that if doing the surgery without proper informed consent was a battery which had a one year statute of limitations Mr. Canterbury was too late to maintain his lawsuit because the year had already passed.  Many previous informed consent cases had been legally identified as battery cases.  On the other hand, if the court identified the cause of action as negligence then a 3 year statute of limitations would apply and Mr. Canterbury had commenced his suit in time.  The court settled on 'negligence' and the case was allowed to continue.  

The statute of limitations for a cause of action may also depend on the relationship of the parties.  

Assume you are a cardiologist who put his patient on a treadmill as part of an effort to diagnose a problem.  You negligently run the treadmill too fast and the patient dies.  That incident occurred in the physician/patient relationship and would be malpractice and the cause of action would be that for medical malpractice cases in that state and the statute of limitations would be that normally required for medical malpractice cases.

Now assume exactly the same physical environment but with the doctor conducting a physical examination as part of an employment exam rather than for treatment.  In this case the person killed is not a patient;  he is more of a specimen under examination, and no physician/patient relationship exists.  This likely would not be an instance of malpractice because it is not a treating relationship.  The tort in this instance would likely be ordinary negligence rather than medical malpractice and the statute of limitations could be different.

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