Statutes of Limitations-Part 2

Statutes of Limitations

If he delays even just a few months, the injured auto accident victim can suffer the loss of his case or may lose the right to sue his primary defendant and all or most of what he might have recovered in his case if he had only acted promptly. This may occur, for example, where there are other provisions of law providing much shorter periods than the statute of limitations within which the accident victim must act to preserve his right to sue. One example of such laws existing in many states, including California, is the "government claims provisions." These requirements apply in a wide variety of auto accident cases, for example where a contributing cause of the accident is a road design defect or failure to properly maintain a roadway. The government claims provisions would also apply if the driver who hit you was a city or county or state employee at the time of the accident, operating his car in the course and scope of his employment.

In each of these cases the injured auto accident victim must file a government claim with the city or county or state within 6 months, a time period obviously much shorter than the 2 year California statute of limitations applicable in auto accident cases.

In the example of the driver who turned out to be a government employee, yes, of course, you might still sue the driver of the car, but if he has a 15/30,000 dollar auto insurance liability policy, that will be of little consolation to the brain damaged or paraplegic plaintiff. On the other hand, if the same man or woman had consulted an appropriately qualified lawyer, the lawyer would have recognized the need to timely file the government claim within 6 months of the date of the accident, and he would have followed the other claims procedures essential to file suit against a public entity. The client could then have obtained full recovery for his injury, his general damages, his pain and suffering, his damages for loss of enjoyment of life, his past and future medical expenses, and full recompense for his past and future earnings losses.

Turning now to the statute of limitations for medical malpractice, and why we urge that you should not attempt to interpret it, apply it, act upon it or fail to act upon it without first obtaining competent legal advice, lets consider California's 1 year "discovery rule," and 3 year "outside limitation." The California medical malpractice statute of limitations provides that actions against health care providers must be filed within 1 year of the date that the malpractice victim discovers or reasonably should have "discovered his cause of action; but even if the cause of action is not discovered, and even where it could not have been discovered, the action is barred after the passing of three years from the date of the malpractice.

Let's take a couple of real cases, prosecuted by the author of this article. In the first, an expectant mother sought the care of a physician who dispensed to her a sedative as recommended by a well known drug manufacturer. The drug caused the mother no side effects, but her child was born with serious limb defects. The drug was later identified in the press world wide as a potent teratogen, although by its European name, not by the brand name under which it was dispensed in the United States, and so the mother had no idea that it was the drug that caused her daughter's limb defects. The child was born in 1962, and she showed up at our law offices an adult, 29 years later. In the meantime, the first special California medical malpractice statute of limitations was enacted in 1970, providing a 1 year discovery rule and most significant here, a 4 year outside limitation. The mother hadn't filed suit during the girl's minority, and the girl, now a young woman, didn't file her case within the four years. In 1975 a second version of the malpractice statute was enacted, providing for a three year outside rule statute of limitations. Because the young woman was still unaware of the cause of her birth defects again this three year time passed without her filing suit.

When the woman described her injuries to this author, they seemed to coincide with the injuries caused by the potent teratogen, and so we obtained the list of physicians to whom the drug company supplied the drug. Her mother's physician, it turned out, was one of them.

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