Statutes of limitations have gotten shorter, but rules vary from state to state. Double-check before assuming you’re safe.
For more than 20 years, Dr. F has been a solo family practitioner in the rural South. He treats problems that range from mundane to life-threatening. In his capacity as a local delegate to the state medical society, Dr. F played a key role in persuading state lawmakers to establish a one-year statute of limitations for malpractice actions. Although he did not realize it at the time, this new legislation would have a profound impact on his career.
One of Dr. F’s patients was a woman who underwent an outpatient procedure to repair an umbilical hernia. She was checked postoperatively and discharged to the care of her family after a six-hour stay. The patient returned home and went to bed for the next 24 hours.
On the following evening, she experienced spells during which she felt faint and dizzy. She either fainted or suffered a seizure the next morning (it was not clear which). The woman was brought to the emergency department, where one of Dr. F’s colleagues examined her. After about three hours of observation, her condition improved, and she was again released to the care of her family.
Shortly after returning home, the patient had another fainting spell and was brought back to the hospital and admitted under Dr. F’s care. Dr. F ordered observation, a cardiac monitor, and a neurology consult. The patient seemed stable until about an hour after admission, when she experienced an episode of low BP, syncope, and shortness of breath. Her oxygen saturation fell to 85%, while a 12-lead ECG showed right-heart strain.
The consulting internist and Dr. F determined that the patient probably had suffered several episodes of pulmonary embolism. By this time, the woman’s condition was rapidly deteriorating, and she required pressors to maintain her BP. Dr. F started her on IV heparin, but it was too late. After an hour, the patient had another “sinking spell” and coded. She was declared dead 30 minutes later.
Dr. F explained to the family that she had died from pulmonary embolism and assured them that he had done everything he could to save her. The family was unconvinced and asked for an autopsy. Dr. F and the family met seven days later and went over the patient’s clinical course once again. After questioning Dr. F for about an hour, the family agreed to wait for the autopsy report, which arrived the next week. The results confirmed massive pulmonary embolism as the cause of death.
After learning of the family’s concerns, the attorney handling the patient’s estate arranged to have a plaintiff’s lawyer scrutinize the medical chart. The lawyer had the chart reviewed by an expert, who reported that the pulmonary embolism was preventable and treatable and should have been detected earlier by Dr. F. The family took several months to consider this information before consulting with the plaintiff’s lawyer. It was another six months before they met and the subsequent malpractice suit was filed against Dr. F. In fact, he had almost forgotten about the case until the white envelope containing the notification arrived at his office.
Dr. F’s insurance company-appointed defense lawyer immediately noticed that the case had been filed more than a year after the patient’s death, apparently violating the state’s new statute of limitations legislation. He moved to dismiss the case.
The judge denied the defense lawyer’s motion. The defense lawyer and the insurance company adjuster discussed with Dr. F the advisability and cost of appealing the trial judge’s decision. After much debate, they decided to appeal. Following another six-month delay, the case was presented to the appeals court.
Upon listening to the lawyers’ arguments and reading the prepared briefs, the appeals court allowed the case to continue to a jury trial. Litigation exhaustion inevitably set in, however, and the parties settled.
After the most recent malpractice insurance crisis, many states shortened the statute of limitations for medical malpractice cases as part of comprehensive tort reform. The state in which this case occurred lowered its time frame from two years to one year. The plaintiff’s lawyer carelessly forgot this important detail when he allowed so many months to pass before filing.
Fortunately for him, the state supreme court had ruled previously that the statute of limitations starts from the date that the malpractice is discovered rather than the actual date of the alleged negligence. In this case, the clock started ticking when the plaintiff’s expert told the family that Dr. F could have prevented his patient’s death. This “discovery rule” was created to ameliorate the harshness of a short statute of limitations and is strictly a judicial modification made to the original legislation in the interests of fairness to the plaintiff.
The solo practitioner is extremely vulnerable in today’s litigious climate, but consultation with a colleague can reduce the risk of adverse events that lead to litigation. Successful solo clinicians keep a mental list of specialist consultants to whom they regularly refer and who are available for informal or emergency consultation. This is not only good medical practice, but it also makes sense from a legal standpoint. To a juror, it seems prudent to seek consultation in a case in which the primary clinician is not completely clear on what is happening. Even a mere telephone consultation may persuade jurors that the clinician is the caring, conscientious, and careful professional they expect.
Dramatically shortened statutes of limitation in some states and procedural restrictions on filing malpractice suits in others have made life difficult for plaintiff’s lawyers. Before clinicians get too excited, however, it must be noted that there are several exceptions to these shortened statutes. The “discovery rule” noted above is subject to considerable interpretation by the judge. Another common exception is the “age of majority” rule, which delays the running of the statute of limitations until an allegedly injured child reaches the age of 18. Despite these exceptions, every case should be examined to see if the statute of limitations can be used to dismiss the case or reduce its settlement value.