Being a litigator means you are often anxious about deadlines. The deadline that produces the most anxiety is the “statute of limitations.” Washington law has many statutory deadlines for filing different kinds of lawsuits, including several that apply specifically to medical malpractice cases. The basic one is the three-year statute of limitations, which means a lawsuit must be filed within three years of the negligent medical care or it is barred. When a client calls and says his botched surgery happened “about” three years ago, the first thing a lawyer has to do is pin down the exact date of the surgery. Missing the statute of limitations deadline by even one day can mean the lawsuit cannot be brought. Most litigators have systems of tracking such deadlines, and even backup systems, to make sure a deadline is not missed. Lawyers sometimes say you can “turn a bad medical malpractice case into a good legal malpractice claim” by missing the statute of limitations.
There are exceptions to this rule. One is called the “continuing course of treatment” rule, which means a lawsuit can be filed within three years of the last date on which there was continued negligence of the same type by the same provider, and the claim can then cover years of bad treatment that occurred more than three years ago. Another is called the “one year after discovery” rule. An injured patient has one year to bring a lawsuit from the time she/he discovered, or reasonably should have discovered, the elements of a medical malpractice claim. This “discovery” rule is subject to another rule, giving an injured patient up to a maximum of eight years after the negligent medical care.
A classic example is an x-ray taken more than three years after a surgery that reveals some error made in the surgery. Without the x-ray findings, the patient could not know that an error had been made. “One year after discovery” cases can be difficult, however, because it is a fact issue when the claim should have been discovered, and the same jury that decides the underlying case also decides whether the statute of limitations has run on the claim. The result can be a great deal of work and resources put into a case, only to have the jury decide against you on the statute issue.
Another exception to the three-year statute of limitations is a “tolling” of the statute if the patient or his attorney submits a “good faith request for mediation” to the health care provider before the three year period runs. The practical effect is that this adds an additional year to the three-year period.
There are also special rules that apply to medical malpractice claims against governmental entities, such as public hospital districts, the University of Washington or Harborview. A statute requires that a state claim form be submitted in such cases, and a lawsuit cannot be filed until sixty days have elapsed following this submission. If the claim form is submitted within sixty days of the running of the statute of limitations, it extends the statute for that additional sixty days.
Finally, in cases involving a federal health care provider, such as a V.A. or military hospital doctor, there are special rules under the “Federal Tort Claims Act.” The statute of limitations for a claim against such an employee is two years from the time the patient discovered or should have discovered the elements of a medical malpractice claim, and the statute is tolled when a formal claim form is submitted. The government then has six months in which to resolve or deny the claim. If it is denied, or after the six months have elapsed with no action, the claimant can file a lawsuit in federal court within six months.
Some clinics that receive federal financial help to provide care to rural or low-income patients are “deemed” to be federal employee for purposes of the federal tort claims act, and the same procedures apply. A medical malpractice lawyer has to be vigilant about determining whether care was provided by such a “deemed” clinic and therefore a reduced statute of limitations applies.
