A report last year indicated that the lion’s share of medical malpractice claims in the U.S. stem from incidents of missed or improper diagnoses, totaling some $39 billion in payouts over the last 25 years.
One of the biggest complications in a missed-diagnosis claim in Charlotte is the issue of the statute of limitations. While the law is clear that plaintiffs only have a small window in which to formally allege wrongdoing, there are a few situations in which exceptions are made and the statute of limitations clock can be halted or “tolled.”
In North Carolina, medical malpractice lawsuits have to be filed within three years of the act or omission that gave rise to the injury or within two years of the date of the discovery. (Actions for objects left in the body have to start within one year of discovery or up to 10 years after the date giving rise to the injury.) These limits can be tolled when a person is a minor, deemed mentally incompetent or if the defendant is undergoing bankruptcy.
Generally, those who were minors at the time of the injury have three years from the time they turn 18 in which to file a suit.
These issues were recently addressed in the case of Schroeder v. Weighall, which resulted in the Washington State Supreme Court finding that the state’s tolling statute violated its own constitution.
According to court records, the plaintiff was 9-years-old when he first sought treatment from a doctor for intense bouts of dizziness, nausea, headaches, double vision and weakness in his legs. After reviewing an MRI scan of the boy’s body, the doctor determined there was nothing wrong with him.
However, the boy’s symptoms persisted.
Years later, at age 17, the boy again sought treatment for these symptoms and again, underwent an MRI. However this time, a doctor reviewing the scan determined that the boy had a condition called Arnold Chiari Type I Malformation. This is a condition in which the brain tissue protrudes into the spinal canal. The new doctor reviewed the old scans and determined the condition had been present then as well. The other doctor had missed it.
The day before the teen turned 19, he filed a medical malpractice lawsuit against the doctor who had treated him when he was 9.
However, the doctor argued that the action was barred by the statute of limitations, and subject to the minority tolling exemption. In that state, the law allows a lawsuit to be filed within three years from the act or omission giving rise to the injury or one year from the time a patient discovered or reasonably should have discovered the cause of the injury.
In this case, the boy and his mother discovered the alleged omission while he was still a minor. According to state tolling law, this would have meant he had one year from the time of his 18th birthday to file. However, a conflicting state law meant that he actually filed about two months too late. It was on this basis that the trial court granted a summary judgment in favor of the doctor.
In reviewing this ruling, the state supreme court noted that while it is important to protect defendants from “stale” claims, it is also equally important to recognize that minors should receive special consideration. Here, the court found that the law that strips minors of the right to bring a medical malpractice action within a year of their 18th birthday violates the portion of the state constitution that deals with special privileges and immunities.
Now a young man, this plaintiff will be able to move forward with his case.
The bottom line for any plaintiff is that as soon as you become aware of a medical malpractice injury, it is imperative to immediately meet with an experienced injury lawyer. The laws governing statutes of limitations are strict, and you don’t want to miss the opportunity to seek compensation.
Contact our Charlotte medical malpractice lawyers at Lee Law Offices today by calling 800-887-1965.
Schroeder v. Weighall, Jan. 16, 2014, Washington State Supreme Court
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