Hopefully, if you are reading this, you have lived your life never having to consider calling a lawyer because you or someone close to you has been harmed due to someone else’s wrongful actions. If that is the case, then you are probably unaware that there are time limits within which victims of medical malpractice must file lawsuits in order to recover for harm caused to them.

It is often only after a very bad thing has happened that people consider calling an attorney. Hopefully, that call occurs well within any applicable time limits. However, sometimes for very good reasons, injured people are unaware that there are time limits to bring claims and wait too long.

Years ago, medical malpractice victims were singled out for “special” treatment by our legislature. This resulted in a number of “special” rules that medical malpractice victims had to follow that other victims of negligence did not. Fortunately, many of those special rules have been repealed by our state’s Supreme Court, almost leveling the playing field for all negligence victims.

Recently, one more step has been taken in that direction. On December 7, the Washington State Supreme Court found that a time limit applying only to victims of medical malpractice called the “Statute of Repose” was found unconstitutional.

If you know about any time limits that apply to bringing claims, you’ve probably heard of the “statute of limitations”, which is the typical time limit within which you must file a lawsuit and protect your interests. Generally speaking, in Washington that time limit is three years for car crash cases and medical malpractice cases.

However, claims involving wrongful medical care are sometimes not as straightforward as a car crash, at least as far as timing goes. With a car crash, you typically know when the crash occurred, so you know when the negligence occurred, and you can easily figure out the time within which you need to file your lawsuit.

While the same may be true for a surgery (I went in for an appendectomy and came out paralyzed from the waist down), it is not always apparent that negligence caused the injury in question.

Sometimes it takes longer than three years to figure out what went wrong. Fortunately, there are exceptions to the traditional three year time limit. Like, for example, if you have a bad outcome from a surgery or hospitalization, and the hospital won’t give you the records until after the three year time limit expires, and when you finally get them you see evidence that negligence caused your bad outcome. 

Another example is when a patient suffers an injury, and it is only after years – and diligence – that the patient finally learns that the cause was the negligence of a previous provider.

In those examples, patients may rely on an exception to the statute of limitations called the “Discovery Rule”, which gives patients a year from the time they discover, or reasonably should have discovered, that the injury was caused by negligence. However, prior to December 7, 2023, those patients only had a total of eight years within which to bring their claim. After eight years, the Statute of Repose barred any claims (with limited exception).

Now, post December 7, that eight year limit is gone.

In Bennett v. United States, the plaintiff had sinus surgery in 2009. She had some post operative bleeding, so a subsequent doctor inserted packing in her nose, causing her to pass out from pain. She had another operation to stop the bleeding from her nose, but was eventually discharged.

Over the next many years, she suffered from symptoms including migraines, malaise, light sensitivity, memory loss and other neurocognitive impairment. Despite seeing many different specialists to try and figure out the cause of her symptoms, it was only in August of 2017 – more than eight years since the surgery at issue – when she finally learned that her symptoms were likely caused by a traumatic brain injury, which was itself caused by the nasal packing in 2009.

You can read the opinion here if you are so inclined, but from my perspective, it comes down to fundamental fairness. The Supreme Court found that the rationale behind the statute of repose (including to keep medical malpractice insurance costs down) was insufficient to outweigh the unfairness to this patient – and all patients in similar situations – who have been catastrophically harmed, do everything they can to try and fix what has been done to them, and when they finally figure out why they’ve suffered for so long, and are told they are too late.

We are fortunate to live in a state with few barriers to justice for all victims, and especially those of medical malpractice. In our state, juries of our peers get to decide the merits of these cases. And the sky isn’t falling. Malpractice cases and premiums are not causing doctors to flee our state. A win without a real loss.