Tag: Statute of Repose

Undiagnosed Cancer under Alabama’s Statute of Repose

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By Alex Stein

Alabama Code Section 6–5–482(a) that extends to “all actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort” prescribes, (inter alia) that –

“in no event may the action be commenced more than four years after such act.”

The Alabama Supreme Court interprets this provision as beginning the four-year repose period when the plaintiff suffers “legal injury” from the defendant’s malpractice. See Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1196 (Ala. 2008) (“‘[w]hen the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6–5–482 commences when the legal injury occurs’” (quoting Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala. 1994)). This interpretation is far more generous to plaintiffs than the conventional doctrine of repose, under which the countdown of the statutory repose period begins on the day of the physician’s malpractice even when the patient develops the resulting illness or injury later on. For my analysis of the conventional doctrine of repose, see here and here.

This plaintiff-friendly interpretation did not help the plaintiff in Cutler v. U. Ala. Health Services Foundation, — So.3d —- 2016 WL 3654760 (Ala. 2016). Read More

Fraudulent Concealment by Nonfeasance as an Exception to the Statute of Repose

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By Alex Stein

As a general rule, malpractice suits against physicians and hospitals must be filed within the repose period that starts running on the day of the alleged malpractice. Expiration of that period kills the plaintiff’s suit regardless of whether she was able to file it on time. Unlike statutes of limitations, this absolute time-bar does not depend on the accrual of the plaintiff’s cause of action nor is it subject to the discovery rule and equitable tolling. Typically, states recognize only one exception to the statute of repose: fraudulent concealment. Under that exception, when a negligent doctor or hospital intentionally gives the aggrieved patient (or her successor) false or misleading information about the treatment, the patient (or her successor) becomes entitled to toll the repose period until she becomes aware of the true facts. Many courts have ruled that this exception was only available to plaintiffs who could establish affirmative misrepresentation on the part of the doctor or the hospital. According to these decisions, fraud capable of tolling the repose period could only be committed by misfeasance, that is, by active conduct rather than by failure to disclose the relevant facts. More recent court decisions, however, obliterate the omission-commission distinction in the context of fraudulent concealment by doctors and hospitals: see, e.g., DeLuna v. Burciaga, 857 N.E.2d 229, 245-46 (Ill. 2006).

A recent decision of Michigan’s Court of Appeals, In re Estate of Doyle, 2016 WL 857204 (Mich.App.2016), continues this trend. Read More

“Medical Malpractice” vs. General Negligence: The Case of Falling Accidents

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By Alex Stein

As I wrote previously – see here, here, here, here, here, here, here, here, and here – whether a tort action sounds in “medical malpractice” as opposed to general negligence, or vice versa, can be crucial. Suits sounding in “medical malpractice” must satisfy special requirements that include shortened limitations periods, statutes of repose, and expert affidavits (or certificates of merit) at filing. In many states, those suits are also subject to special damage caps. Suits sounding in general negligence are free from these constraints. Filing and prosecuting those suits is consequently not as onerous and expensive as filing and prosecuting medical malpractice actions. For that reason, we witness many disputes over this pivotal categorization issue. Read More

Do Medical-Malpractice Time Bars Apply to Hospitals’ Indemnification Suits Against Doctors?

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By Alex Stein

The South Carolina Supreme Court has recently decided that a hospital’s indemnification suit against doctors whose malpractice made it pay compensation to the aggrieved patient is subject to the same time bars as patients’ actions against defaulting physicians. Columbia/CSA-HS Greater Columbia Healthcare System, LP v…., — S.E.2d —- (2015), 2015 WL 249536 (S.C. 2015).

Chief Justice Jean Hoefer Toal wrote a vehement dissent in which she was joined by Justice Kaye Hearn. In that dissent, she wrote that “The majority’s holding represents a fundamental misunderstanding of the nature of indemnification actions which I fear will have far-reaching effects on the ability to seek indemnification.”

The Chief Justice was absolutely right. Read More

Medical Malpractice and the “Continuous Act” Exceptions to the Statute of Repose

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By Alex Stein

Cefaratti v. Aranow, — A.3d —- (Conn.App. 2014) is a textbook decision on the “continuous act” exceptions to the statute of repose. This decision of the Connecticut Appeals Court draws an important – but oft-missed – distinction between “continuous wrong” and “continuous treatment.”

Back in 2003, the plaintiff underwent open gastric bypass surgery in an attempt to cure her morbid obesity. Her follow-up treatment and monitoring took place between 2004 and the summer of 2009. All these procedures have been carried out by the same surgeon, the defendant, at a hospital in which he had attending privileges as an independent contractor.

The plaintiff testified at her deposition that on each of her post-operative visits, she told the defendant that she was experiencing abdominal pain. In August 2009, after being diagnosed with breast cancer by another physician, the plaintiff had a CT scan of her chest, abdomen, and pelvis, which revealed the presence of a foreign object in her abdominal cavity. This object was a surgical sponge that the defendant negligently left when he operated the plaintiff in 2003. Following that discovery, the plaintiff filed a malpractice suit against the defendant. Read More

Medical Malpractice in Reproductive-Choice Procedures

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By Alex Stein

Malpractice suits filed in connection with reproductive-choice procedures often present unique problems. The suit filed by Jami Conner against her former gynecologist, Dr. Bryan Hodges, is a case in point. The plaintiff, a mother of two children, decided that she did not want to have more children. To avoid future pregnancy, she asked the defendant to perform bilateral ligation of her tubes and the defendant granted her wish. Two and a half years later, however, the plaintiff discovered that she was pregnant again. Her suit against the defendant promptly followed that discovery. Read More

Medical Malpractice: FTCA’s Trap for the Unwary

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By Alex Stein

Anyone interested in medical malpractice must read the First Circuit’s decision in Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014).

Mr. Sanchez’s wife died in a Massachusetts hospital shortly after delivering her third child by c-section. She died from arguably preventable hemorrhaging. Mr. Sanchez and his lawyer thought that they had a 3-year window for filing medical malpractice suit in connection with that death, as prescribed by Massachusetts law, Mass. Gen. Laws Ch. 260, § 2A. Unbeknownst to them, however, the hospital was a federally qualified health center, which made the doctors who treated Mrs. Sanchez “federal employees” under the Federally Supported Health Centers Assistance Act of 1992, 42 U.S.C. § 233. As a result, Mr. Sanchez could only sue the United States under the Federal Tort Claims Act (FTCA). He wouldn’t mind doing so, but his ability to file such a suit had expired in two years pursuant to FTCA. This predicament is known as FTCA’s trap for the unwary: see here. Read More

Unconstitutional Time Bars in Washington

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By Alex Stein

Schroeder v. Weighall — P.3d —-, 2014 WL 172665 (Wash. 2014), is the second Washington Supreme Court’s decision that voids the Legislature’s time bar for medical malpractice suits.  The first decision, DeYoung v. Providence Medical Center, 960 P.2d 919 (Wash. 1998), voided an eight-year repose provision for violating the constitutional prohibition on special privileges (Article I, section 12). This statutory provision benefited healthcare providers and their insurers at the expense of injured patients whose cause of action accrued over a long period of time and consequently tolled the statute of limitations.  The Court held that the Legislature had no rational basis for blocking suits filed in connection with more-than-eight-years-old incidents of medical malpractice. The Court based that decision on the finding by the National Association of Insurance Commissioners that old medical malpractice incidents account for “less than one percent of all insurance claims nation-wide.” This finding convinced the Court that the “relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny.”

In Schroeder, the Court used the same constitutional prohibition to void a new statutory provision that eliminated tolling of the statute of limitations for minors in medical malpractice actions. Read More

Caveat Veterans: Limitations and Repose in Medical Malpractice Actions under FTCA

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By Alex Stein

To be able to sue the government under the Federal Tort Claims Act (FTCA), an aggrieved person must first present his claim to the appropriate agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). When the agency fails to make a final disposition within six months, the claim is deemed denied and the person may sue the government in federal court. 28 U.S.C. § 2675(a). Alternatively, he may continue the process with the agency. If the agency ultimately denies the claim, he would have another six months to file a suit. 28 U.S.C. § 2401(b).

Augutis v. United States — F.3d —-, 2013 WL 5553084 (7th Cir. 2013), features a medical patient that did exactly this. Alas, when he sued the government for medical malpractice, allegedly committed by his doctors at the Veterans Affairs Hospital in Illinois, it was too late. His suit was blocked by the Illinois statute of repose (735 ILCS 5/13–212(a)) that nullifies an aggrieved patient’s right to sue his doctor within four years of the date of the alleged malpractice. The patient argued that this statute was preempted by the abovementioned provisions of FTCA, but the Seventh Circuit disagreed.  Here is why: Read More