Posted by Bill Sandweg on 01 March 2021.
It seems like every week or so we get a call from a potential client who reports that she was the victim of medical malpractice. When we begin to ask for more details, it turns out the malpractice occurred more than two years ago. This is a problem and here is why.
Every state has established time limits on when a lawsuit can be brought. The idea is that the longer a person waits to bring suit, the dimmer memories have become and the harder it is for the defendant to find the necessary witnesses and adequately defend himself. The amount of time usually varies depending on the type of suit involved.
Arizona is no exception. For our purposes, the statute of limitations for medical malpractice cases is two years. The statutory period begins to run when there has been malpractice which has caused an injury to the patient. There are some exceptions, however.
One of the most significant of the exceptions is for minors. The statute of limitations does not begin to “run” for a minor, until she or he reaches the age of majority, which in Arizona is 18 years of age. If a minor is injured when she is 5, she has until she turns 20 to bring suit.
During the time the patient is a minor, the time period is “tolled.” This means that it does not “run” during the tolling period. The statute is also “tolled” for other periods of disability, such as lack of mental competence.
When a child is severely injured, the law sometimes recognizes that the child’s parents may have also suffered an injury resulting from the injury to the child. Until a few years ago, one such injury was the child’s medical bills, for which the parents were responsible. While the child had until she turned 20 to sue, if the parents wanted to recover the medical bills, they had to file suit within the first two years after the injury. Now, however, either the child or the parents, but not both, can sue for the medical bills.
When a child is injured, the injury may be so severe that it significantly interferes with the parent-child relationship. When this occurs, Arizona recognizes a claim for loss of “consortium” with the child. In other words, the parents may recover for the damage done to the relationship they had with their child. However, since this cause of action belongs to the parents, they must file suit within the first two years after the injury to the child and, since the law does not permit separate suits by the parent and the child, the child must also sue within the first two years after the injury or the parents lose their right to sue.
Another major exception to the two year limitation period occurs when the patient had no reason to know that he was the victim of malpractice. This can occur, for example, when a surgical instrument is left inside the patient or when the patient has no reason to know that a bad result was caused by medical negligence. However, once a reasonable person would or should suspect that the bad result was caused by medical negligence, the statutory period begins to run.
Not all medical malpractice injuries are governed by the two year period. There is a much shorter period when the malpractice was caused by someone employed by the state or a subdivision of the state. In those cases, the patient has only 180 days in which to file a Notice of Claim arising out of the injury and to serve it on the appropriate governmental agencies describing the injury, the negligence, the damages suffered and the amount they would accept in settlement . If the Notice of Claim does not result in a prompt settlement, suit must be filed within one year of the date of the injury. Notices of claim are highly technical and should not be attempted by a lay person.
When someone comes to see me, I need to do substantial investigation to determine if it is a case I can take. I need to interview the patient, obtain and review the medical records and consult with expert witnesses. All this usually takes at least 90 days so if a patient comes to see me a month before the end of the two year period, I will not have enough time to do my investigation.
The takeaway from all this is to see a qualified lawyer as soon as possible, if you think you may have been the victim of malpractice. The lawyer may tell you that it is too soon to tell if you have a claim but at least you won’t be too late.
