A statute of limitations restricts the amount of time in which a claimant may pursue legal action. Most laypeople think of criminal offenses when they hear this term. However, such statutes are also directly applicable to civil law, including medical malpractice. These laws which set a time limit for filing a case in court exist for three reasons:
- If a plaintiff has a valid claim, they should be motivated to pursue it with all deliberate speed; time limits incentivize such behavior.
- Crucial evidence may be lost or damaged if too much time has elapsed before the case is brought to court.
- Without such limits, lawsuits could be utilized to persecute someone rather than to obtain justice.
If the deadline has passed before papers are filed with the court, the judge will not allow such a case to be placed on the docket.
With medical malpractice cases, determining when the statute of limitations expires can be complicated. However, the statute does take into account the date of the alleged breach.
The Three-Year Rule
Under California law, a plaintiff is allowed three years to act from the date of the injury. This rule remains in effect even if there were no symptoms resulting from the negligence before the third anniversary of the incident has passed.
Although the statute of limitations allows three full years, a plaintiff should file their claim well in advance of this time limit. In California, the plaintiff in a medical malpractice lawsuit must meet the additional procedural requirement of giving the healthcare provider named in the suit a minimum of 90 days’ notice before the suit is filed. More specifically, a plaintiff must begin the process of contacting a lawyer and gathering evidence by two-and-a-half years after the date of injury, if there is to be a reasonable hope of meeting the deadline.
The One-Year Rule
After a medical breach is discovered, another clock starts.
From the point of discovery, there is one year to file a lawsuit, unless the original three-year deadline expires first.
The deadline can only be shortened by the discovery of malpractice; it cannot be extended.
This rule would apply if a patient (plaintiff) went to a doctor following the incident and the doctor, upon investigating their symptoms, informs them the only reason for these symptoms is negligence on the part of a previous healthcare provider.
Once this occurs, the one-year rule clock starts and a patient (plaintiff) must file their lawsuit within a year of being informed by the doctor of said negligence.
To complicate matters, this one-year time limit can be triggered if the defense attorney can argue that the patient (plaintiff) had “sufficient” notice that they had been the victim of malpractice.
Let’s consider the case of a patient (plaintiff) who is experiencing pain and visits several physicians to attempt to determine the cause. More than one of them suggests that it could be due to negligence from a previous procedure, but specific tests (such as computed tomography [CT] or Magnetic Resonance Imaging [MRI]) must be performed for definitive confirmation.
From the moment that a second physician informs the patient (plaintiff) of this, even if such tests are not performed, the patient (plaintiff) is considered to have had sufficient notice, and therefore the one-year countdown begins.
The single exception to the three-year limitation in California is any case that involves a foreign object. If a foreign object was left inside a patient’s body during surgery, the three-year time limit is not applicable.
However, the one-year limit from the moment of discovery still applies.
Let’s consider the case of a patient (plaintiff) who upon receiving an x-ray five years after an operation is discovered to have had a medical instrument left inside their body. They now have one year from the date of the x-ray to file their lawsuit.
In such cases, the patient (plaintiff) is likely to discover malpractice with the help of another doctor or healthcare worker. However, in order to build a compelling case to support the contention of malpractice, the physician or other healthcare worker who made the initial discovery may not be the ideal person to assist in court.
When preparing to file a lawsuit, plaintiffs and attorneys require an experienced and knowledgeable medical malpractice expert physician.
A general surgical expert will have the additional courtroom skill set that is requisite to providing careful and logical expert testimony to a jury about the surgical procedures and protocols that the original treating physician should have followed.
If the operation was in a highly specialized field, like colorectal surgery, an experienced colorectal surgeon is needed who can guide either the plaintiff or the defense through the nuances of each case.
This surgeon must be able to withstand cross-examination by the defense attorney and defend his or her statements regarding the proper standard of care.
In summary, the statute of limitations in California limits a patient who has been injured to a three-year window for taking legal action, with just one year to file with the court after the injury has been discovered. The only exception to the three-year rule is a case of a medical object being left inside a patient during surgery. Expert legal representation and expert testimony from a well-qualified physician is essential to a successful legal outcome.