Malpractice Consult

By Lee J. Johnson, JD

Stretching the statute of limitations

•  The statute of limitations protects defendants from "stale" claims.

• The clock may not start ticking until a patient discovers negligence.

• Plaintiffs' attorneys often wait until the last moment to file a lawsuit.

Q: Two years ago, another doctor diagnosed a lung tumor in one of my patients and sent him to have the tumor surgically removed. The patient was angry that I hadn't diagnosed the tumor earlier, and he switched to a different physician. A year ago, a lawyer requested his records, but I haven't heard anything since then. As far as I can tell, the patient has remained in remission. The statute of limitations on malpractice claims in my state is three years. When does the "statute clock" start ticking? What's my liability if the tumor recurs and the patient then dies of this cancer?

A: In general, the laws require a patient to file suit within two or three years after the alleged negligence. The purpose of the statute of limitations is to encourage prompt civil action and to deter "stale" claims when it's likely that records may be lost or discarded, witnesses have moved away, and memories have faded.

But there are exceptions to the general rule. The clock may not start until after a patient discovers—or should have discovered—that the injury was caused by negligence, even if the incident itself occurred many years before. Also, minors usually have until the age of majority plus the two or three years to file suit.

In most malpractice cases, the statute starts "ticking" on the last date of treatment for the condition in question. But if the condition is never diagnosed or treated, it's a bit trickier. In your case, it would appear that the statute started when the other doctor made the diagnosis two years ago.

Plaintiffs' attorneys often wait until the last moment to file a lawsuit while they collect evidence and obtain expert reviews. So you still have a year to wait.

While you may have been "wrong" in failing to diagnose the cancer sooner, you may not have committed malpractice. Unless you misread a test, one defense could be that the cancer was fast-growing and couldn't yet be detected at the time you treated the patient. Experts can be called upon to testify about the rate of growth and the likelihood of symptomatology and detection at that point in time.

The next line of defense would be "reasonableness." In malpractice cases, you don't have to be 100 percent right, but you must show that you were reasonable. If your diagnosis comports with that of the reasonable physician in your specialty at the time of your treatment two years ago, then you have a viable defense.

Also, the plaintiff must demonstrate that there are damages. If the patient is in remission, then the damages are probably negligible.

But if the patient's condition has deteriorated, then he must prove proximate cause—meaning that there is a clear connection between your failure to diagnose and the damages. Perhaps the patient's condition would be the same whether or not you had made the earlier diagnosis. In that case, the plaintiff may not be able to show that your alleged negligence caused the actual damages.

If the patient dies, you could be named in a lawsuit even years after you saw him. In most states, a doctor can be taken to court if the alleged negligence diminishes a patient's odds of recovery. It's up to a jury to decide whether a doctor's failure to diagnose reduced the chances of survival or successful treatment. The statute of limitations for wrongful death starts to run at the death.

Lee Johnson. Malpractice Consult: Stretching the statute of limitations.

Medical Economics

Sep. 5, 2003;80:82.