Statute of Limitations

Statutes of Limitations

M. Heise , in International Encyclopedia of the Social & Behavioral Sciences, 2001

1 Definition

Statutes of limitations are procedural rules that limit legal actions on the basis of time. They derive from both legislative and judicial sources and exist in many continental and non-continental legal systems. Specifically, they regulate the amount of time that a potential plaintiff has to initiate a formal legal claim. In general, once a statute of limitation expires, a plaintiff cannot press a particular legal claim, regardless of its underlying substantive merits.

It is important to distinguish statutes of limitations from the closely related yet distinct common law doctrine of 'laches.' The doctrine of laches vests courts with discretionary authority to determine whether a plaintiff, while commencing a legal action within the time requirements set forth by the relevant statute of limitations, nonetheless has unreasonably delayed bringing a lawsuit to the detriment of a defendant (Heriot 1992). Both statutes of limitations and the doctrine of laches limit a plaintiff's access to court.

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The Law of Health Care Malpractice

Ron Scott PT, JD, EdD, LLM , in Promoting Legal and Ethical Awareness, 2009

Statutes of Limitations

For purposes of health care malpractice litigation, the statute of limitations is a time line that begins at a point at which a patient knows (or should reasonably know) that he or she was injured at the hands of a health care provider and ends some months or years later at a time fixed by state or federal statute. The alleged victim of malpractice must file a formal civil lawsuit within the confines of that time line or be forever barred from later bringing legal action. The statute of limitations is considered a procedural, rather than a substantive, law.

Statute of limitations:

Period after injury during which an injured person must file a civil lawsuit or be forever barred from later initiating legal action.

The statute of limitations has several key purposes. First, the statute of limitations affords an injured person sufficient time to investigate the source and nature of an injury, consult with and retain legal counsel (if desired), file a complaint with the responsible party (and/or that party's employer and/or insurer), and attempt to settle the matter short of resorting to trial. Second, the statute of limitations creates a state of certainty (except when its exceptions apply, discussed later) and finality. Under the statute of limitations, legal cases must be commenced and brought to trial within a reasonable time frame so that witnesses to an event are still alive and available, documents and physical evidence are preserved for inspection, and parties and insurers can anticipate the resolution of pending legal disputes and their likely consequences.

A number of exceptions to the statute of limitations apply in many jurisdictions. If one of these exceptions applies, the statute of limitations is said to be tolled, or suspended until the exception is no longer applicable. Some exceptions concern what is termed a legal disability involving an alleged victim. For example, in some jurisdictions, the statute of limitations is tolled for minors and mentally incompetent victims for varying periods. Now, many jurisdictions do not suspend the statute of limitations because of a victim's minority or incompetency. This is the case in the federal civil legal system. 25

Other exceptions that toll the statute of limitations include the continuous treatment doctrine and the discovery rule. Under the continuous treatment doctrine a court may suspend the running of the statute of limitations during the time in which the alleged victim of malpractice and the responsible health care professional maintain an active patient-professional relationship for treatment of the same condition from which injury resulted. The public policy purpose for this exception is that a tort victim should not be expected to interrupt necessary health care intervention for an active condition in order to bring legal action for malpractice.

The principle exception to the statute of limitations is the discovery rule. Under this exception, the statute of limitations may be suspended for the period during which an injured person cannot reasonably be expected to discover the injury upon which a malpractice claim may be based. The discovery rule has been invoked for conditions such as surgical sponges, needles, or instruments left inside of a surgical patient. Consider the following hypothetical example:

A patient is referred to physical therapy by an orthopedic surgeon with a diagnosis of cervical degenerative joint disease with mild right C5 radiculopathy. The treatment order reads, "Evaluate and treat. Consider traction and/or appropriate mobilization techniques." After taking a thorough history and conducting a comprehensive physical examination, the physical therapist makes evaluative findings and formulates a physical therapy diagnosis. The therapist then treats the patient using manual cervical distraction and manipulation techniques. The patient does not improve, and after several treatments, appears to have worsened. The physical therapist then ceases treatment, and refers the patient back to the orthopedist for reevaluation. Nine months later, it is discovered through diagnostic imaging study, that the patient sustained bony injury to the cervical spine, probably from the physical therapist's manipulation treatments. The statute of limitations would probably not begin to run until the date of discovery by the patient of the existence and source of the injury.

Some states, pursuant to tort reform legislation, have placed absolute time limits, called statutes of repose, on certain types of civil actions, particularly for strict product liability actions. 26 This means that, regardless of legal disability or plaintiff inability to discover the source of an injury, the outside time limit for initiating affected legal actions covered under statutes of repose is cut off after a set statutory period. Statutes of repose are considered to be an equitable way to solve the problems of perpetual litigation involving products produced long ago and incidents resulting in injury that have become stale because of lost or destroyed evidence or unavailable witnesses.

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Medical Malpractice Defenses

S. Sandy Sanbar M.D., Ph.D., J.D., F.C.L.M. , in The Medical Malpractice Survival Handbook, 2007

4. Statute of Limitations: Failure to File a Malpractice Claim in a Timely Manner

Standard Rules

The statute of limitations (or repose) is that period of time during which a plaintiff can bring a malpractice action against a physician, which varies depending upon the circumstances of the case. In general, that period of time is governed by state statutes and may be limited to two years. However, the statutes of limitations may be extended for patients who cannot discover the misdiagnosis in time, for those with legal disability, and for children. For example, in Wisconsin, a five-year statute of limitations (repose) was held unconstitutional where the patient (child) did not discover the misdiagnosis until four years following the expiration of the limitations period.

The statutory period of limitation commences when the malpractice cause of action accrues, that is, when the allegedly negligent act occurs, or when the allegedly negligent act results in injury or damage, depending on the jurisdiction. In some jurisdictions a mere misdiagnosis, without injury or damage, may not trigger the statute of limitations; the latter is triggered by the injurious result of the misdiagnosis.

In the case of minors and the disabled, courts have interpreted conflicting state statutes of limitations by considering the constitutional issues that the malpractice case may raise.

The statutory period of limitation may be modified by other state statutes, for example, to allow for administrative reviews of malpractice claims by a State Department of Insurance prior to commencement of the malpractice lawsuit.

Discovery Rules

A major exception to seemingly rigid statutes of limitation is the so-called "discovery rule." Some medical injuries may not be discoverable by the patient during the period applicable to the statute of limitations, because an injured patient may be unaware of the injury or may not be able to reasonably associate injury with an act or omission of the physician. Additionally, in some jurisdictions, a plaintiff must first obtain favorable expert medical testimony that negligence has occurred before filing a malpractice lawsuit.

Simply stated, the "discovery rule" allows the injured patient to file a malpractice action within a specified period of time from the date that the injury is actually discovered, or should have been discovered, if the injured has exercised reasonable diligence. Virtually all jurisdictions recognize the "discovery rule" as an exception to the statutes of limitation. Many jurisdictions apply the discovery rule only to situations where the injury is inherently unknowable, or to malpractice actions where a foreign body is left in the patient postoperatively, such as sponge-in cases.

The "discovery rule" is further subdivided into pure and hybrid. Pure discovery rules permit a malpractice claim to be brought in some states for an indefinite period of time, so long as the injury has not been discovered, or reasonably should not have been discovered. Some states follow the hybrid discovery rule, which states that the discovery of the injury triggers the running of the statute of limitation, although an ultimate cap or limit is placed upon the time within which discovery must occur.

Fraudulent Concealment Rule

There are other situations that toll the statute of limitations, thereby extending the time for bringing a malpractice action. If a physician is found to have "knowingly concealed" a negligent act or omission, i.e., fraudulent concealment, the statute of limitations may be tolled. The statutory period of time to file a complaint begins when the plaintiff "should have known" about the negligent act or omission.

Continuing Treatment Rule

Another situation arises where patient treatment continues for a period of time, during which it is difficult to ascertain when the negligence occurred. Some jurisdictions have adopted a "continuing treatment" rule to determine the time of injury for purposes of the statute of limitations. The continuing treatment rule provides another exception to the statute of limitations by extending the time allowed for the filing of a complaint. The malpractice action would only accrue, thus activating the statute of limitations, when treatment of the medical condition ceases.

The tolling of the statute of limitations has been the subject of legislative reform in a number of jurisdictions, and several reform measures have been initiated to provide clarification of the discovery rule.

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Medical Malpractice

Mark Cooney JD , in Principles of Addictions and the Law, 2010

Statute of Limitations

A statute of limitations defense depends on the unique provisions found in each state's statute. States vary somewhat in their malpractice limitation provisions, but a survey of national cases reveals some common timeliness issues that arise in addiction cases. This section will focus on the most common timeliness questions in the addiction context, which often concern when the claim accrued or when the patient should have discovered the claim.

An understanding of the common statutory framework is helpful to this discussion. Most states offer two possible timeframes in which to sue: (1) the general limitations period that begins to run when the claim accrues; and (2) a second, "grace," period that begins to run when the patient discovered or should have discovered the claim. An example of this typical approach is found in Washington's medical malpractice statute of limitations, which allows patients to sue within three years of the physician's negligent act or omission, or within one year of when the patient discovered or reasonably should have discovered that an injury was caused by that act or omission (Wash. Rev. Code § 4.16.350 (West, 2005; Supp. 2008)). (The statute of limitations analysis in all jurisdictions may be further complicated by alternate timeframes in death cases, or by tolling based on a patient's minority or other legal disability. Malpractice suits may also be governed by a statute of repose.)

Many states also recognize a court-made "continued course of treatment" rule that treats an "entire course of continuing negligent treatment as one claim" ( Caughell v. Group Health Coop. of Puget Sound, 1994). Under the continued course of treatment rule, a malpractice suit based on a continuous course of negligent treatment is timely if the patient can show that the last negligent act or omission occurred within the statutory limitations period – in Washington, for example, if the last negligent act or omission occurred within three years of when the patient filed suit (Idem at 905, 907).

The relative flexibility offered by these typical timeliness rules benefits patients who claim that their addiction stemmed from their doctors' unrestrained prescription of addictive medications for extended time periods. The Washington Supreme Court's decision in Caughell v. Group Health Coop. of Puget Sound (1994, Idem at 907) illustrates this. In Caughell, the patient alleged that her physician negligently prescribed Valium and Etrafon to her for over 20 years "without monitoring for physical and psychological side effects," causing her to become addicted (Idem). The court declared the patient's suit timely, reasoning that the Valium prescriptions continued until at least March 1988, which was within three years of the patient's January 1991 complaint (Idem). Moreover, even though the physician discontinued Etrafon prescriptions more than three years before suit was filed, the patient convinced the court that the physician's failure to properly monitor her after withdrawing this medication constituted negligence and that this negligence extended to within three years of the patient's suit (Idem).

North Carolina courts have taken a very similar approach. In Ballenger v. Crowell (1978), the North Carolina Court of Appeals applied a continuing course of treatment rule – with a discovery component – to find that the trial court had improperly dismissed a 1976 suit arising from the prescription of narcotics from 1960 to 1974 (Idem at 292). Under this rule, the court explained, the patient's claim did not accrue in 1962, when the patient first became addicted to the drugs. Rather, the claim accrued when the patient–physician relationship ended in 1974, or when the patient "knew or should have known of his injury," whichever occurred earlier (Idem at 294). The court found that even though the patient knew of his addiction as early as 1962, he did not necessarily know that his doctor's prescription of narcotics was unnecessary, and thus negligent, until the physician–patient relationship ended (Idem). Because there was a factual question concerning when the patient knew or should have known that the narcotic prescription was unnecessary, the court concluded that a jury should have decided the timeliness issue, making summary dismissal inappropriate (Idem at 294–295).

The Tennessee Court of Appeals has also applied the continuing treatment rule in the addiction context, emphasizing how difficult it can be to assign a specific discovery date or duration to drug addiction. In Higgins v. Crecraft (1991, at *8), the patient sued within one year of his physician's last negligent prescription and within one year of the patient's hospitalization for addiction. The physician argued that the suit was nevertheless untimely because the patient knew he was addicted five or six months earlier. Under Tennessee's statute of limitations, the physician argued, the one-year limitations period began to run from that discovery date (see Idem at *3).

After a lengthy discussion of Tennessee's continuing treatment rule, the court held that "because of the peculiar nature of addiction, the question of when the [patient] acquired effective knowledge that he had been tortiously injured is a question of fact for the jury," thus precluding summary dismissal of the patient's case (Idem at *7). The court explained that the physician's argument might have been well-founded "[i]f addiction were a sudden, identifiable, one-time trauma, such as a broken leg, or the contraction of an infection" (Idem at *4). But, the court explained, "the word addiction is not so finely defined as to support a ruling of law as to its inception, nature or duration" (Idem).

Federal courts, however, may be less generous in applying the continuous treatment rule to medical malpractice claims brought under the Federal Tort Claims Act. In Schunk v. United States (1992), for example, the court acknowledged that the continuous treatment tolling rule applies to medical malpractice claims brought under the FTCA, but the court refused to apply it where the addicted patient had been treated by two different VA hospitals and multiple doctors within those hospitals (Idem at 82). The court believed that the continuous treatment rule only tolls the limitations period when the patient is continuously treated by "the same doctor or hospital" (Idem citing Camire v. United States, 1976). The court also believed that the defendant physician in Schunk would have been prejudiced by the passage of time, noting the unavailability of important medical records that might have supported his defenses (Idem).

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Child Sexual Abuse and Adolescent Sexuality

Christine Wekerle , ... Karen Francis , in Handbook of Child and Adolescent Sexuality, 2013

Professional Responsibilities in CSA

Child-serving professionals are mandated reporters, with most American states thus identifying child daycare providers, substitute caregivers, educators, legal and law enforcement persons, healthcare and social service providers (US Department of Health and Human Services, Administration on Children, Youth, and Families, 2003). Of all the types of maltreatment reported to child welfare, CSA is the lowest frequency category (US Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children's Bureau, 2010; Trocmé et al., 2010). Adolescents represent the largest sexual assault age category; prior sexual victimization is a risk factor (Kaufman, 2008). Research indicates that medical professionals tend to report younger children more frequently to child welfare, with school-age children more commonly reported by education and social services (Palusci & Ondersma, 2012). Mandatory reporting laws exist to support child protection and protect child well-being: the clinician's reasonable concern, or suspicion, that maltreatment may be present prompts a report to the child welfare system to initiate their decision-making to open a file for investigation, on-going services, and so forth. Professionals, as individuals whose reasonable concerns are reported "in good faith" are protected in law. In CSA, the timeliness of reporting is especially important, given the typical lack of CSA-specific medical findings and the sensitivity of the child's disclosure to persuasion and pressure from offenders, especially if the non-offending parent remains aligned primarily with their partner (Asnes & Leventhal, 2010; Faller, 1996). The role of failure to protect of the non-offending parent is a child welfare consideration. Professional duty is the initiation of a report. To protect the child, temporary removal from the home may occur, with some suggestion that it is more frequent for CSA cases (Pence & Wilson, 1994). Ultimately, the intervention of child welfare services is intended to provide safety to the child and contribute to the protection of other children by logging a formal report on a particular perpetrator, who may otherwise establish other relationships where children are at-risk. Without an established consequence, the volitional adult actions can repeat and children's vulnerabilities increase. CSA, like all forms of maltreatment, is not provoked in any way, or deserved. Neither the assault, nor the protection from it, is the child's or adolescent's responsibility. The abuse and neglect of youth is an adult choice. Abuse and neglect should never have happened; the societal safety nets failed; having happened, it should never recur. Sadly, numerous girls and many boys carry the burden of CSA put upon them by perpetrators.

Research shows that children do not predominantly make malicious reports, although details may be subject to memory decay over time (Loftus, Garry, & Feldman, 1994). While CSA accusations by adults occur in custody and access disputes, this is the minority of CSA cases. With credible child disclosure (i.e., behavioral sequences described, sex-related details not commensurate with developmental expectations, coherent story told to different people, etc.), significant child safety concerns are raised when a caretaker is openly and persistently disbelieving of a child's disclosure, and allows further contact between the child (or children) and the suspected or alleged perpetrator (Fortin & Jenny, 2012). Disclosure, though, is not required to consider sexual abuse potentially pertinent. The physical abuse of sexual abuse may not be fully appreciated: injury may occur outside of the anogenital region, and may include injury to the airway, oral cavity, and skin (bruises, bite marks). Further, other health issues (constipation, dental carries, otitis media) may occur at higher frequency in CSA cases. Injuries can be sustained in the act of sexual assault, in restraining the victim, and in enforcing silence and future compliance. Children may show sexualized behavior problems, such as engaging siblings and peers in sexual acts, show persistent self-stimulatory behaviors in public contexts, as well as repeated or persistent sexualized play. Explicitly imitating intercourse or pairing sexuality with violence is uncommon, and warrants comprehensive assessment (Fortin & Jenny, 2012). Research has shown that developmentally appropriate sex-related behaviors occur, such as the preschooler trying to look at others undressing and, when transient and developmentally appropriate, are likely part of the normative sexuality developmental process (Friedrich et al., 1992; Sinclair, Press, Koenig, & Kinnealey, 2005). Medical findings specific to CSA are either from an acute hospital presentation (i.e., sperm taken in a sample from the child's physical examination), or from a pregnancy (Fortin & Jenny, 2012).

It should be noted that, in some jurisdictions, there is no statute of limitations on reporting CSA to child welfare, and wherever minors are present, even if the disclosing victim is no longer a minor, a child welfare report for reasonable suspicion of risk of CSA if the perpetrator has access to children is a consideration. Also, CSA may occur in the context of other types of maltreatment, so if one type of maltreatment is suspected, the other types (physical abuse, emotional abuse, neglect, witnessing domestic violence) need to be assessed. Maltreatment (informal) reporting has already been influenced by the availability of broad communication channels, such as the Internet:

My sexual predator half-sibling set up my sister, my cousin, and myself in a swimming pool by making us think he was just having fun with us …. After a few times of throwing me up in the air, he slipped his hands down the bottom of my bathing suit touching me up front. I swam away immediately. If he did it to me, I know he did it to my much younger sister and cousin.

http://www.divinecaroline.com/22190/83919-sexual-predator-grooming-behaviors#ixzz1vNJWbiRG

Mercifully, most individuals will never know child sexual abuse, and many sexual abuse victims live successful lives. This chapter, though, is a consideration in how impairment arises in adolescence from the CSA adverse event. This focus does not negate the contribution of other forms of maltreatment, and that impairment may be broader than sexual functioning issues. The current dominant theoretical mechanism, as Cicchetti & Rogosch (2009) discuss, is severe stress and its impact on the developing brain. CSA may be chronic or may be event-based, and there is evidence emerging on CSA impact on brain structure and functioning, which may link with the time of exposure (Anderson et al., 2008; Tomoda, Navalta, Polcari, Sadato, & Teicher, 2009). While mechanisms are likely multifold, CSA victims are at increased risk for mood and anxiety disorders, suicide attempts, substance abuse, eating disorders, somatization, and repeat victimization, with increasing recent attention to physical disorder and chronic health conditions (Maniglio, 2009; Shenk, Noll, Putnam, & Trickett, 2010; Teicher et al., 2003; Teicher, Tomada, & Andersen, 2006). In the following sections, we consider, in turn, sexual behavior problems (SBPs) and sexual offending.

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DNA

Alan Sandomir , John Butler , in Rape Investigation Handbook (Second Edition), 2011

Indicting "John Doe"

Because DNA-based investigations can frequently turn into long-term investigations that may exceed the statute of limitations for prosecution, prosecutors have devised a strategy to "stop the clock" on cases due to expire without an arrest or resolution. With this strategy, legal time constraints can be suspended and the case can continue until the offender is identified, located, and apprehended.

The strategy is simple but not without drawbacks. Local prosecutors will bring the entire unsolved case, evidence and all, before a grand jury. The case is presented to the grand jury against an unknown assailant identified only by his DNA profile. If acceptable, the grand jury will indict this unknown offender based on the DNA being offered as both evidence and proof of his existence. Some police departments and local prosecutors call this a "John Doe indictment" because they are indicting a person who is unidentified. The name "John Doe" is used because it is commonly employed by law enforcement to denote a person whose identity is not yet known. It is a commonly accepted slang term in many jurisdictions that has worked its way into both police and court documents to indicate that a person is not identified (Figure 14.4).

Figure 14.4. Then police commissioner of the NYPD, Howard Safir, holds a sketch of the East Side rapist. As reported in Barnes (2000): "With a series of genetic markers as their evidence, Manhattan prosecutors announced the indictment yesterday of the man known as the East Side rapist, even though investigators still do not know who he is. The indictment, one of the few instances in the country that a DNA signature alone has been used to charge a person with a crime, will prevent the statute of limitations from expiring in three of the seven rapes the man is suspected of committing between 1994 and 1998. The grand jury charged him just four days before the five-year statute of limitations would have expired on the earliest attack cited in the indictment, said Robert M. Morgenthau, the Manhattan district attorney. Police Commissioner Howard Safir said he believed that the East Side rapist was still at large. 'We think this is an innovative and creative way of holding those accountable for their actions,' Mr. Safir said. 'With DNA technology we can convict someone today, tomorrow or 10 years from now.'"

If the grand jury indicts the DNA profile, an arrest warrant can be issued based on that indictment. An arrest warrant has no expiration date. Therefore, the perpetrator can be sought until captured. The statute of limitations no longer applies. However, the drawback is that in some jurisdictions—not all—because charges have been formally brought against this person in a court of law, the right to counsel may attach automatically. That means that the offender, when caught, usually has an absolute and automatic right to an attorney before being questioned.

Although this might not stop investigators from talking to the assailant prior to the arrival of counsel, the statements given might not be able to be used in court. Each jurisdiction has its own set of legal requirements. Each investigator, therefore, needs to research the options available. Some jurisdictions will allow for the questioning of a subject after an arrest warrant has been issued. Some will not.

It is also important to note that some jurisdictions have no statute of limitations for crimes such as rape. Consequently, these jurisdictions have no practical use for the John Doe indictment strategy other than to allow for additional charges that would have been normally disallowed if the John Doe DNA indictment were not filed and the statute of limitations were allowed to expire on them.

Other jurisdictions have statute of limitation "recipes" for designated felonies. In such cases, a specific amount of time can be added on to the established limit if the case experiences extenuating circumstances. This includes cases where there is DNA or when the investigator can document that the suspect is out of the jurisdiction for a period of time.

Additionally, some jurisdictions or agencies may allow the suspect to be questioned after an indictment and/or arrest warrant has been handed down. Each jurisdiction and agency is different. John Doe indictments can only be used when it is legally and practically viable to do so.

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An Introduction to Crime Reconstruction

W. Jerry Chisum , Brent E. Turvey , in Criminal Profiling (Fourth Edition), 2012

Premature Disposal/Destruction

At some point, an item of evidence may be slated for lawful disposal or destruction. Cases may be adjudicated, statutes of limitation may run out, and biological or chemical hazards may exist that make such measures necessary. However, physical evidence must not be destroyed before proper documentation and forensic examination have taken place. Unfortunately, those charged with the custody of evidence are commonly prone to neglect, mistakes, and ignorance with respect to the performance of these duties.

The inappropriate "house-cleaning" that takes place in some crime labs has been attributed largely to miscommunication and ignorance. However, the practice of specifically targeting some types of evidence, like untested rape kits, for destruction has been criticized as an intentional effort to prevent post-conviction testing that could result in an overturned conviction or even an exoneration.

To account for these post-discovery influences, a record must be kept of the people, places, and processes that the evidence has endured since the time of its recognition at the scene. This record is usually referred to as the chain of custody. Even though a reliable chain may be established, physical evidence may have been altered prior to or during its collection and examination. Unless the integrity of the evidence can be reliably established, and legitimate evidentiary influences accounted for, the creation of a chain of evidence does not by itself provide acceptable ground on which to build reliable forensic conclusions. It is, however, a good start, and without it evidence should not be considered sufficiently reliable for courtroom opinions.

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Libel and Slander

David Heller , Sandra Baron , in Encyclopedia of International Media and Communications, 2003

III.D.1 Statute of Limitations

Defamation claims must be brought within a limited time period after publication. Claims brought after the limitation period are barred. The statutes of limitation for libel vary among the states from one to three years and for slander from six months to three years. In claims against newspapers, magazines, books, and other media, the limitation period begins to run as soon as the publication is released to the general public, even if this publication was only later discovered by the plaintiff. On the other hand, in non-media cases, involving a letter, credit report, or other more private communication, publication for statute of limitations purposes can be measured from the time the plaintiff actually became aware of, or should have known about, the defamatory statement.

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Otorhinolaryngology

Matthew L. Howard M.D., J.D., F.A.C.S., F.C.L.M. , in The Medical Malpractice Survival Handbook, 2007

Fraudulent Inducement to Enter into a Contract

This has already been discussed above under the heading of informed consent. This author predicts that it will become an increasingly popular cause of action because the statute of limitations for fraud complaints is typically as long as six years, whereas many states have limited malpractice actions to a year or two. A physician sued for, among other things, representing himself as a plastic surgeon was found not liable where he held himself out to be "certified as an otolaryngologist, facial surgeon, and cosmetic surgeon," and was not asked whether he was a board-certified plastic surgeon. The court found that he had no affirmative duty to disclose but had a duty to respond truthfully. 12

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Clinical and Forensic Pathology

Cyril H. Wecht M.D., J.D., F.C.L.M. , in The Medical Malpractice Survival Handbook, 2007

CASE PRESENTATIONS

Case 1.

In May 1982, the surgeon removed a lump from behind a patient's knee, which was assumed to be a Baker's cyst. During the operation, a frozen section was reported as benign. Several days later, the pathologist returned from an absence and examined the tissue microscopically. He reported in writing that the mass was a benign neurilemoma.

On December 6, 1982, the patient reported to the surgeon that she was experiencing swelling at the operative site. He examined her and told her to return in a month.

In January 1983, the surgeon wrote to the pathologist, asking him to review the slides again. The pathologist personally assured the patient that the tumor was benign.

On February 24, 1983, a surgeon at a second hospital removed two tumors from the patient's knee. They were diagnosed as malignant. Pathologists at this hospital reviewed the previous slides and concluded that the mass removed in May 1982 was a malignant schwannoma. The patient's leg was amputated above the knee.

On February 14, 1985, the patient filed a malpractice action against the first pathologist, the hospital, and others. Because the lawsuit was filed more than two years after the initial surgery on December 6, 1982, the trial court granted summary judgment for the hospital and physicians.

On appeal, the patient contended that the statute of limitations did not begin to run until the termination of the first surgeon's continuous course of treatment, which occurred when he referred her to the surgeon at the second hospital, on February 15, 1983. The court agreed that the continuing course of treatment applied to the surgeon. However, the patient's claim was not against the surgeon.

The appellate court agreed that the surgeon's course of treatment should be imputed to the pathologist. It was the surgeon's adherence to the pathologist's diagnosis that dictated the nature and duration of treatment.

The court said that until the alleged misdiagnosis was corrected or the surgeon ceased to rely on it, the pathologist's constructive involvement in the treatment was sufficient to constitute the required assistance or association to prevent the running of the statute of limitations. Thus, the court found that the patient's claim against the pathologist and her vicarious liability claim against the hospital were not barred by the statute of limitations. 1

Case 2.

A compensatory damages award of $135,000 for emotional suffering was not excessive in the decedent's family's action against a medical examiner who exceeded the scope of his authorization by removing the decedent's heart during the autopsy without permission. Each member of the decedent's family testified about the effect that the discovery of the unauthorized removal had on them, including physical illness, uncontrollable crying, nightmares, and familial tension that culminated in a family member moving out of the family home. 2

Case 3.

Evidence supported a jury's award of $3.5 million in a survival action against a pathology lab whose purported negligent interpretation and reporting of the results of a patient's postpartum Pap smears allegedly resulted in the failure to discover her cancer when she had a 95% chance of survival. The patient spent seven months engaged in a painful battle for her life, which she knew from the beginning she would lose. In addition to the excruciating physical pain she suffered, she endured the mental anguish of spending the last several months of her life unable to care for her two small children. The evidence further demonstrated her consternation over the loss of a normal relationship with her husband. 3

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