For the tried and true veteran as well as the relative newcomer, medical malpractice cases can be complicated and difficult to win. According to the Journal of the American Medical Association, medical negligence is the third leading cause of death in the U.S. And yet, a study in the New England Journal of Medicine reported that in each year studied by the authors, only 7.4% of all physicians had a malpractice claim brought against them, with just 1.6% of physicians having a claim that led to payment.
Medical malpractice claims present a variety of hurdles, including some of the more obvious issues: finding evidence to support the claim, getting an expert to testify, and dealing with causation issues when complicating factors are involved, to name a few. In addition to the inherent challenges of these cases, there are several traps in medical malpractice cases that can trip up an attorney before he or she even gets out of the gate. Here are five traps to look out for:
1. A peculiar twist in the statute of limitations
Each state has its own statute of limitations for medical negligence claims. While they may seem very clear cut, most states have a few twists and turns that are far more convoluted. For example, in Alabama, the statute of limitations is two years from the date of injury or six months from discovery, according to the National Conference of State Legislatures (NCSL). Again, seems easy enough, but what if the injury develops some time after the negligent act? What if the injury is apparent at the time of the act of negligence, but the act of negligence is not discovered for some time? In cases of delayed discovery, it’s imperative to know if there are additional limits on the statute of limitations, as there are in Colorado, where, according to the NCSL, the time is two years from the date of injury, but no more than three years from the act, unless the act was knowingly concealed or a foreign object.
Bottom line: Read your state's statute of limitations very carefully and don't presume that the basic time limitation applies. Laws can also change, so it is important to conduct up to date research.
2. The hospital is a government entity.
Some hospitals are run by the state or the county. In this event, the medical malpractice claim will likely be subject to any government tort claims procedures required in that particular state. For example in California, a claim for personal injury against a public entity must be presented according to certain procedures, and must be presented within 6 months of the date the cause of action accrues. Failure to follow the specific procedures required by your state, include the correct information, or timely present the claim, can serve as an absolute bar to the medical malpractice claim.
Bottom line: It may not always be readily apparent that a hospital is actually a public entity, so be sure to research who operates the hospital and what the claims procedures entail.
3. The doctor is a federal employee and the Federal Tort Claims Act (FTCA) statute of limitations applies.
A similar trap can occur when the doctor is a federal employee. Where a doctor is federal employee, the medical malpractice claim will be subject to the Federal Tort Claims Act (FTCA). The FTCA is a limited waiver of the federal government's sovereign immunity, which gives federal courts jurisdiction over personal injury claims against the government caused by the negligent or wrongful act or omission of a government employee.
The case of Sanchez v. US serves as a stark warning to attorneys on this issue. There, the doctors sued for medical malpractice had treated the patient at North Shore Medical Center-Salem Hospital in Massachusetts but worked for Lynn Community Health Center. As employees of the Community Health Center, the doctors were deemed to be federal employees under the Federally Supported Health Centers Assistance Act of 1992. Plaintiff's counsel waited more than two years to file suit in state court, believing that the three year statute of limitations under Massachusetts law applied. Ignorance of the FTCA's two year deadline or an assumption that the doctors were not federal employees were not a sufficient basis for equitable tolling, the First Circuit Court of Appeals held.
Bottom line: Investigating the employment status of the doctors involved in a medical malpractice claim is a must, as is whether the employer is federally funded. Failing to do so can expose an attorney to a legal malpractice claim, should events unfold as they did in the Sanchez case. It’s also important to remember that once a claim is identified as falling under the FTCA, not only does the two year statute of limitations apply, but administrative claims procedures do as well.
4. Notice of Intent to Sue
Many states, such as California, require a medical malpractice plaintiff to give the defendant notice of the intent to sue. In California, such notice is required to be given 90 days prior to the commencement of the action. The timing of said notice may affect the statute of limitations. For example, in California, if the notice is served within 90 days of the date that the statute of limitations will expire, the time for the commencement of the action shall be extended 90 days from the service of the notice.
Bottom line: Research whether your state requires a notice of intent to sue, what information is required, and how it must be served.
5. Affidavit of merit
Twenty-eight states require that a medical malpractice plaintiff file an affidavit or certificate of merit in order to proceed with the claim. For example, in Florida, a verified written medical expert opinion from a medical expert must be submitted at the time the notice of intent to initiate litigation is mailed.
Bottom line: Know whether your state requires an affidavit or certificate of merit.
Medical malpractice cases can indeed be challenging for a variety of reasons. Don't let these traps trip you up before you even get started!