Skip to content

February 18, 2014

2

What’s the Statue of Limitations on Minor Medical Malpractice Claims?

by WSBA
medical malpractice
Learn how Schroeder v. Weighall, M.D. impacts med-mal claims by minors.

medical malpracticeA minor’s medical malpractice claim has traditionally been subject to the same statute of limitation requirements as that of an adult. However, the recent Washington Supreme Court decision of Schroeder v. Weighall, M.D., et al., has declared RCW 4.16.190(2) unconstitutional.

Statute of Limitations

Traditionally, the statute of limitations on tort claims which a minor has is tolled until the minor reaches the age of majority. However, under RCW 4.16.190(2), the statute of limitations for a minor’s medical malpractice claim is not tolled.

RCW 4.16.350 provides that a lawsuit which alleges injuries caused by medical negligence must be filed within three years of the “act or omission” giving rise to the claim, or within one year after the patient “discovered or reasonably should have discovered” that the injury was caused by the alleged medical negligence. The statute imputes the knowledge of a parent or guardian upon the injured minor.

Washington Supreme Court Decision

The recent decision issued by the Washington Supreme Court in Schroeder v. Weighall, M.D., et al., declared RCW 4.16.190(2) to be in violation of article I, section 12 of the Washington state Constitution. The Court recognized that “compelling a defendant to answer a stale claim is a substantial wrong.” However, the Court also provided that “a stale claim is not a substantial wrong — at least, not substantial enough to warrant preventative legislation — when it is brought by a plaintiff who is unable to sue at the time of injury for any reason other than minority.” The Court reasoned that RCW 4.16.190(2) places a large burden on children whose parent or guardian either lacks the knowledge or incentive to pursue a medical malpractice claim on the child’s behalf.

Impact to Practitioners

The Court’s decision in Schroeder will greatly impact the timing and litigation of medical malpractice claims. A minor who is injured as a result of alleged medical negligence now has the option of waiting until his 21st birthday (age of majority plus three-year statute of limitations) to file a claim. Stale medical malpractice claims brought within the new limitation period will likely be subject to faded memories, missing records, and missing witnesses. As a result, the cost of litigation will likely increase. However, the real effect remains to be seen.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Note: HTML is allowed. Your email address will never be published.

Subscribe to comments

Follow

Get every new post delivered to your Inbox.

Join 3,561 other followers