Answer: E. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called “doctrine of laches” that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, i.e., relief from worrying for an indefinite period of time whether a lawsuit will be brought. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. In England, actions for negligence-based personal injury have a limitation period of 3 years. Additionally, section 33 allows the court to use its discretion to extend this time period, something that is not available in other common law jurisdictions such as Singapore and the United States.
Dr. S.Y. Tan
The statute of limitations does not start to run from the date of the negligent act or omission. For example, if there is a failure to timely diagnose and treat a cancerous condition and the patient suffers harm several years later, time starts to accrue from the date of discovering the injury, not the date of misdiagnosis. The term “discovery rule” defines the accrual period, which begins from the date the injury is discovered or should have been discovered if the party had exercised reasonable diligence. In cases of fraudulent concealment of a right of action, the statute may be tolled (halted) during the period of concealment. Tolling also may apply during legal disability.
In malpractice actions involving minors, the running of the time period may be tolled until the minor reaches a certain age, such as the age of majority, or by the minor’s 10th birthday (Hawaii law). Chaffin v. Nicosia1 dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.
Courts are apt to closely scrutinize attempts to use the statute of limitations to prevent recovery as taking such actions could deprive the injured plaintiff of an otherwise legitimate claim. In one example, the defendants sought to dismiss the case (so-called motion for summary judgment) by arguing that the plaintiff filed suit some 32 months after she had developed Sheehan syndrome from postpartum hemorrhagic shock, and this exceeded the 2-year statute of limitations. The court ruled: “Since reasonable minds could differ as to when the injury and its operative cause should have been discovered by a reasonably diligent patient, the timeliness of the plaintiff’s claims should be decided by a jury and the motions for summary judgment will therefore be denied.”2
Two very recent cases are illustrative of litigation over statutes of limitations. In the first case, the District of Columbia’s highest court held that BKW, a patient-plaintiff, did not qualify for an extension and rejected his untimely suit against the hospital.3 The patient’s injuries stemmed from alleged unsuccessful venipunctures, and his complaint contained six causes of action, including negligent and intentional infliction of emotional distress and unnecessary pain, suffering, and bodily injury. In the District of Columbia, a plaintiff must serve the defendant with notice of intention to file suit (pre-suit notice) not less than 90 days prior to filing the action. The plaintiff must then file the complaint itself within the 3-year limitations period, with an extension allowed to take into account the 90-day pre-suit notice requirement. The case centered on the “within 90 days” requirement to trigger the statute of limitations extension. BKW, acting on one’s own behalf, conceded that the 3-year period applicable to his claims had lapsed, but because his complaint was filed “within 90 days” after the limitation period expired, it was eligible for an extension. The Court disagreed and dismissed the case, holding that to be eligible for the 90-day extension, a plaintiff must serve the pre-suit notice within 90 days before the limitation period expired.
The second case4 alleged malpractice in the care of a patient who died of anaphylaxis after a nurse infused him with iron dextran. The nurse had allegedly left the patient’s room too soon and did not adequately monitor his reaction to the drug. The patient was admitted to the hospital for removal of a colonic tumor and was to receive treatment for iron deficiency anemia. The nurse, identified in the chart as Agency Nurse RN 104, administered the prescribed intravenous 25-mg test-dose of iron dextran over a 5-minute period, but when the patient began having an anaphylactic-type allergic reaction, the nurse was allegedly not in the patient’s room. The plaintiff and her attorney attempted, on several occasions and without success, to discover the actual identity of the nurse from the hospital’s representatives. Consequently, the complaint designated the nurse as “Agency Nurse RN 104,” and the plaintiff did not provide the name of the nurse, even though doing so was legally required; the exclusion of the nurse’s name would have resulted in case dismissal since the statute of limitations had lapsed. However, the court ruled, “we are satisfied that plaintiff and her attorney acted with reasonable diligence in attempting – with no avail – to ascertain the true identity of “Agency Nurse RN 104” before filing suit and before the 2-year limitations statute ran ...”
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Portions of this article had been previously published in a 2010 issue of Internal Medicine News. For additional information, readers may contact the author at siang@hawaii.edu