Statutes of Limitations-Part-3

Statutes of Limitations

But relevant here, the solution to the medical malpractice statute of limitations was to file a complaint alleging that the physician "intentionally concealed" his malpractice from the mother and child, intentional concealment being the antidote to the medical malpractice statute of limitations defense. The author had to fight this out in court, first to defeat the physician's and drug company's demurrer to the complaint and then in overcoming their motions of both for summary judgment. But upon succeeding on those motions, the defendants settled the case for $1,500,000.00, which was compensation this young woman would not have received if she had just looked up the California statute of limitations and decided that her case was time-barred.

Now to take a medical malpractice case in which if the clients had considered the 1 year discovery rule they would surely have concluded that they had waited too long to sue. In this case, the author of this article represented 10 clients, all of whom discovered their causes of action against three physicians and a hospital much longer than 1 year prior to the filing of their complaints. Indeed, all readily admitted at their depositions that they had known of their physicians malpractice and their physical harm from the malpractice more than a year prior to coming to this author for representation. This again led the attorneys for the defendant physicians and hospital to file motions for summary judgment on the grounds that the 1 year discovery rule set forth in the California medical malpractice statute of limitations had passed.

But your author had anticipated that the statute of limitations defense would be vigorously asserted, and so we alleged in the complaint that the physicians and hospital were "co-conspirators." Conspiracy is a legal theory little used by most lawyers, but it has many advantages, including to avoid the bar of the statute of limitations. It is also a relatively easy theory to prove in many cases, simply that one or more people "concurred" to do something that was "wrongful," and that one of them committed an act in furtherance of the conspiracy. And if the lawyer can establish just these few facts, then the rule is that the statute of limitations on the substantive causes of action, like medical malpractice, will not "commence to run," meaning that the time period will not begin to run, until "the last overt act in furtherance of the conspiracy."

As was also easily established, two of the three defendant doctors were still involved in providing their patients the same below standard medical care, continuing "overt acts" in furtherance of the conspiracy through the date when your author sued them, and so the Court rejected the defendants motions for summary judgment, permitting the cases to go to trial against all 3 doctors and the hospital. The author tried the cases of 5 of his 10 clients in a single consolidated 4 month medical and hospital malpractice trial, obtaining a 2.9 million dollar jury verdict, including a 1.9 million dollar punitive damage verdict against the hospital.

Again, if these clients had merely considered the text of the California medical malpractice statute of limitations, they likely would have come to the conclusion that the 1 year discovery rule barred them from filing suit. We discuss the subject more fully on our California statute of limitations, page, but the purpose there as it is here is not to make you wiser in interpreting statutes of limitations. There are literally volumes upon volumes of case law interpreting the nuances statutes of limitations, their exceptions and defenses.

No, the purpose is the opposite, to warn you not to decide for yourself that your claim is barred by the statute or limitation, or the contrary, that you can safely wait for a year or two before filing your legal action. Statute of limitations analyses, and the related analyses such as those described above, which might lead to a client losing his rights earlier than the date provided by the statute of limitations, or the opposite, providing the exception or otherwise delaying the commencement or extending the statute of limitations, permitting what might have appeared a dead claim to find its day in court, should wisely be deferred to competent, highly experienced and knowledgeable lawyers.

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