Statutes of limitation on their surface may seem simple to apply and there are many locations on the web where those who consider that they have legal rights may look to find the state statute of limitations which applies to their claim. Half of those who are likely to look up this information want to find out if the statute of limitations has expired on their case. The other half may want to assure themselves that they have plenty of time left on their statute of limitations so they can attend to matters more pressing matters than the lawsuit, such as seeking out the right medical care and concentrating on their rehabilitation.
This is not an article intended to advise you about the statute of limitations which might be applicable to your case. To the contrary, and much more important for you to learn right now, the purpose of this article is to urge that you not to look up the statute of limitations yourself. Instead you should seek the advice of a competent and knowledgeable lawyer in your state to advise you with regard to the statute of limitations, as well as other statutes providing time sensitive rules that may deprive you of your right to sue long before last day to file suit provided by the statute of limitations. If you want correct information, you will require counsel fully knowledgeable about your state statute of limitations including how it has been interpreted by your state courts of appeals in the volumes of pertinent case law, knowledgeable also about the exceptions to the statutes of limitation, and the other legal theories which can undercut the statute of limitations defense.
We will try to highlight the dangers of your simply looking up the statute of limitations applicable to your type of case and then making decisions on your own that your case is barred and your rights lost, or that you can safely delay filing your complaint to attend to more pressing matters.
As examples, we will explore the two most common statute of limitations questions we receive, the first inquiring about the statute of limitations in auto accident cases, a common question just because there is more accident litigation than any other type of litigation. It is a good question to select also because people might think it so straightforward that anyone should be able to correctly interpret the statute of limitations. The second example is the inquiry about the statute of limitations in medical malpractice litigation, common because in many states the medical and insurance industries have obtained special interest “tort reform” legislation commonly including more restrictive statutes of limitation with “outside limitations,” also permitting us to discuss a “discovery rule.”
There are both federal and state statutes of limitation with most cases arising in the state court systems and so we will pick the 2 year statute of limitation for injuries sustained in auto accidents, and the 1 year discovery rule and 4 year outside rule applicable to medical malpractice cases under California law. Again this is not to provide information for you to rely upon in deciding whether your claim is barred, or conversely to lull you to feel you can safely delay filing suit while you attend to more pressing matters. Rather, it is to demonstrate why you should not attempt to interpret even what might seem to be the most straightforward of statutes of limitation. Leave the interpretation of statutes of limitations to the lawyers. Attorneys will be pleased to speak with you about you case. Just ask for a free case consultation.
So, let’s imagine that through your research you discover that California has a 2 year statute of limitations applicable to auto accidents. What I would hope to demonstrate here is that this is very dangerous information for the injured auto accident victim to rely upon, one who might have been paralyzed, or brained damaged or who might have suffered debilitating internal injuries, catastrophic orthopedic injuries or a limb amputation. He or she may read about the 2 year statute of limitations and be lulled into waiting to file suit, for example to deal with the medical decisions and rehabilitation, or in smaller cases perhaps to see if his injury might resolve.
If he delays even just a few months, the injured auto accident victim can suffer the loss of his case or may lose the right to sue his primary defendant and all or most of what he might have recovered in his case if he had only acted promptly. This may occur, for example, where there are other provisions of law providing much shorter periods than the statute of limitations within which the accident victim must act to preserve his right to sue. One example of such laws existing in many states, including California, is the “government claims provisions.” These requirements apply in a wide variety of auto accident cases, for example where a contributing cause of the accident is a road design defect or failure to properly maintain a roadway. The government claims provisions would also apply if the driver who hit you was a city or county or state employee at the time of the accident, operating his car in the course and scope of his employment.
In each of these cases the injured auto accident victim must file a government claim with the city or county or state within 6 months, a time period obviously much shorter than the 2 year California statute of limitations applicable in auto accident cases.
In the example of the driver who turned out to be a government employee, yes, of course, you might still sue the driver of the car, but if he has a 15/30,000 dollar auto insurance liability policy, that will be of little consolation to the brain damaged or paraplegic plaintiff. On the other hand, if the same man or woman had consulted an appropriately qualified lawyer, the lawyer would have recognized the need to timely file the government claim within 6 months of the date of the accident, and he would have followed the other claims procedures essential to file suit against a public entity. The client could then have obtained full recovery for his injury, his general damages, his pain and suffering, his damages for loss of enjoyment of life, his past and future medical expenses, and full recompense for his past and future earnings losses.
Turning now to the statute of limitations for medical malpractice, and why we urge that you should not attempt to interpret it, apply it, act upon it or fail to act upon it without first obtaining competent legal advice, lets consider California’s 1 year “discovery rule,” and 3 year “outside limitation.” The California medical malpractice statute of limitations provides that actions against health care providers must be filed within 1 year of the date that the malpractice victim discovers or reasonably should have “discovered his cause of action; but even if the cause of action is not discovered, and even where it could not have been discovered, the action is barred after the passing of three years from the date of the malpractice.
Let’s take a couple of real cases, prosecuted by the author of this article. In the first, an expectant mother sought the care of a physician who dispensed to her a sedative as recommended by a well known drug manufacturer. The drug caused the mother no side effects, but her child was born with serious limb defects. The drug was later identified in the press world wide as a potent teratogenic, although by its European name, not by the brand name under which it was dispensed in the United States, and so the mother had no idea that it was the drug that caused her daughter’s limb defects. The child was born in 1962, and she showed up at our law offices an adult, 29 years later. In the meantime, the first special California medical malpractice statute of limitations was enacted in 1970, providing a 1 year discovery rule and most significant here, a 4 year outside limitation. The mother hadn’t filed suit during the girl’s minority, and the girl, now a young woman, didn’t file her case within the four years. In 1975 a second version of the malpractice statute was enacted, providing for a three year outside rule statute of limitations. Because the young woman was still unaware of the cause of her birth defects again this three year time passed without her filing suit.
When the woman described her injuries to this author, they seemed to coincide with the injuries caused by the potent teratogen, and so we obtained the list of physicians to whom the drug company supplied the drug. Her mother’s physician, it turned out, was one of them.
But relevant here, the solution to the medical malpractice statute of limitations was to file a complaint alleging that the physician “intentionally concealed” his malpractice from the mother and child, intentional concealment being the antidote to the medical malpractice statute of limitations defense. The author had to fight this out in court, first to defeat the physician’s and drug company’s demurrer to the complaint and then in overcoming their motions of both for summary judgment. But upon succeeding on those motions, the defendants settled the case for $1,500,000.00, which was compensation this young woman would not have received if she had just looked up the California statute of limitations and decided that her case was time-barred.
Now to take a medical malpractice case in which if the clients had considered the 1 year discovery rule they would surely have concluded that they had waited too long to sue. In this case, the author of this article represented 10 clients, all of whom discovered their causes of action against three physicians and a hospital much longer than 1 year prior to the filing of their complaints. Indeed, all readily admitted at their depositions that they had known of their physicians malpractice and their physical harm from the malpractice more than a year prior to coming to this author for representation. This again led the attorneys for the defendant physicians and hospital to file motions for summary judgment on the grounds that the 1 year discovery rule set forth in the California medical malpractice statute of limitations had passed.
But your author had anticipated that the statute of limitations defense would be vigorously asserted, and so we alleged in the complaint that the physicians and hospital were “co-conspirators.” Conspiracy is a legal theory little used by most lawyers, but it has many advantages, including to avoid the bar of the statute of limitations. It is also a relatively easy theory to prove in many cases, simply that one or more people “concurred” to do something that was “wrongful,” and that one of them committed an act in furtherance of the conspiracy. And if the lawyer can establish just these few facts, then the rule is that the statute of limitations on the substantive causes of action, like medical malpractice, will not “commence to run,” meaning that the time period will not begin to run, until “the last overt act in furtherance of the conspiracy.”
As was also easily established, two of the three defendant doctors were still involved in providing their patients the same below standard medical care, continuing “overt acts” in furtherance of the conspiracy through the date when your author sued them, and so the Court rejected the defendants motions for summary judgment, permitting the cases to go to trial against all 3 doctors and the hospital. The author tried the cases of 5 of his 10 clients in a single consolidated 4 month medical and hospital malpractice trial, obtaining a 2.9 million dollar jury verdict, including a 1.9 million dollar punitive damage verdict against the hospital.
Again, if these clients had merely considered the text of the California medical malpractice statute of limitations, they likely would have come to the conclusion that the 1 year discovery rule barred them from filing suit. We discuss the subject more fully on our “California statute of limitations”, page, but the purpose there as it is here is not to make you wiser in interpreting statutes of limitations. There are literally volumes upon volumes of case law interpreting the nuances statutes of limitations, their exceptions and defenses.
No, the purpose is the opposite, to warn you not to decide for yourself that your claim is barred by the statute or limitation, or the contrary, that you can safely wait for a year or two before filing your legal action. Statute of limitations analyses, and the related analyses such as those described above, which might lead to a client losing his rights earlier than the date provided by the statute of limitations, or the opposite, providing the exception or otherwise delaying the commencement or extending the statute of limitations, permitting what might have appeared a dead claim to find its day in court, should wisely be deferred to competent, highly experienced and knowledgeable lawyers.
Helt, Tim Lowly © 2015, acrylic on panel, 24" x 18" This painting is part of the re. Rainbow Girl project. The "meaning" of these paintings is suggested in part by their conversation with specific Read more…