LNCtips.com: Statutes of Limitation and Repose
Statutes of repose and statutes of limitation are laws that impose deadlines for filing lawsuits. As a legal nurse consultant, you've heard of statutes of limitation. But what's a statute of repose?
A statute of repose, like a statute of limitation, identifies a date after which an injured person has no right of action. Statutes of repose are present in many states for medical malpractice cases. A statute of repose is a stricter deadline than a statute of limitations because discovery of the injury doesn't toll the statute. Tolling refers to suspending the statute of limitations.
Let's look at how the statutes work using an example from Florida, a state that has both statutes of limitations and repose [FS 95.11(4)(b)]. In Florida, adult patients must file a presuit claim within two years of the date of the alleged malpractice or within two years from the time of discovery of the incident.
Most patients are aware when an incident occurs so they file presuit claims within two years of the alleged malpractice. However, not all patients discover their injuries until later. Let's say that a surgeon and the operating room staff accidently left a piece of foreign material in a patient during his surgery on July 3, 2007. The surgeon and staff were unaware of the retained foreign material. Let's say that the patient discovered the foreign body when he had an x-ray on January 9, 2011. Assuming that the patient had damages from the foreign body, he could file a claim even though it was past the two-year deadline because he just discovered the incident.
What happens if the patient doesn't discover the foreign material until July 4, 2011? That's where the statute of repose comes in. In Florida, the statute of repose imposes a deadline of four years after the incident occurred. In the case of the foreign material, the patient could not file a presuit claim after July 3, 2011 because more than four years would have elapsed since the incident.
To prevent deceit by physicians and other health care providers, the Florida statute extends the limitation another two years after the incident if fraud, concealment, or misrepresentation by the facts occurs. So, if the surgeon or staff had been aware of the incident in 2007 and covered it up, the patient would be able to file a claim until July 3, 2013.
Of course, it's the attorney's responsibility to decide if a case falls within the statutes of limitations and repose. However, legal nurse consultants need to be aware of the state's statutes of limitations and repose for the cases they review.