The court of appeals held that the discovery rule can be applied to wrongful death and survival actions, and that the statute of limitations begins to run when the plaintiff knows or should have known that the death was “wrongfully caused.” However, this did not necessarily mean knowledge of a specific defendant’s negligent conduct or knowledge of the existence of a cause of action.
The court stated: “Plaintiff filed his complaint long after he became possessed with sufficient information, which put him on inquiry to determine whether actionable conduct was involved.” The court ruled that the relevant inquiry was not when the plaintiff became aware that Dr. Rhode may have committed medical negligence, but when any defendant may have committed medical negligence against the patient Kathryn. The case is currently on appeal to the Supreme Court of Illinois.
In addition to the discovery rule, other situations may toll the limitations period. One example is fraudulent concealment of a right of action, where the statute may be tolled during the period of concealment. And in all jurisdictions, the running of the time period is halted in malpractice complaints involving treatment of a minor until that minor reaches a certain age, such as age of majority, or after a stipulated number of years, for example, 6 years.
Occasionally, a health care provider may overlook an important tolling provision. California, for example, has a rule that any “payment” made to an injured party must be accompanied by a written statement regarding the applicable statute of limitations.
In the recent Coastal Surgical Institute v. Blevins case,7 the defendant surgeon made a payment of $4,118.23 for medical expenses incurred by an unrepresented plaintiff, but had neglected to attach a release or a written notice regarding the statute of limitations. The plaintiff subsequently decided to file a lawsuit, even though more than a year – the statutory period – had lapsed.
Under the facts, the limitation period was tolled, and the trial court allowed the case to go forward, ultimately finding liability and awarding damages of $500,000, later reduced to $285,114. The court of appeals affirmed the decision.
This case has prompted MIEC, a malpractice insurance carrier, to emphasize putting in writing the restrictions imposed by the limitations statute to any unrepresented patient. MIEC also warned that the term “payment” might be construed liberally, citing case examples that include a free counseling session and the provision of specialized care for a student injured by a school’s gym equipment.
References
1. Kaplan v. Mamelak, 162 Cal. App. 4th 637 (2008).
2. Yoshizaki v. Hilo Hospital, 433 P.2d 220 (1967).
3. Jacoby v. Kaiser Foundation Hospital, 622 P.2d 613 (1981).
4. Yamaguchi v. Queen’s Medical Center, 648 P.2d 689 (1982).
5. Buck v. Miles, 971 P.2d 717 (1999).
6. Moon v. Rhode, IL. 2015 App. 3d 130613.
7. Coastal Surgical Institute v. Blevins, 232 Cal. App. 4th 1321 (2015).
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at siang@hawaii.edu.