Published 7/1/2009
Kevin G. Shea, MD; Kevin Scanlan, JD; Charles Mehlman, DO, MPH

How long must we wait?

By Kevin G. Shea, MD; Kevin Scanlan,JD; and Charles Mehlman, DO, MPH

The impact of interstate variability of the statute of limitations for medical liability

Medical liability continues to be a major issue for patients, physicians, and healthcare providers in the United States. Any attempt at healthcare reform should consider the impact that medical liability has upon healthcare access and costs. Reforming the healthcare system without addressing the impact that medical liability has upon cost and access will be a major impediment to improving health care for all Americans.

From the perspective of plaintiff’s attorneys, some consumer groups, and physicians, the healthcare industry has not done an adequate job of reducing medical errors, nor does the medical profession do an adequate job of policing its own members. These groups view litigation as a critical mechanism to deter unsafe practices, to compensate persons injured through negligence, and to exact corrective justice.

From the perspective of many medical practitioners, the current medical liability environment has a substantial negative impact on the practice of medicine throughout the United States for both physicians and patients. The negative effects include defensive medicine practices, loss of patient access to high-risk medical care, higher costs, and dissatisfaction of medical professionals.

The perspectives of these different groups reflect a very broad spectrum of opinion on the topic of medical liability, which is reflected in the wide variation in state statutes. Advocates on both sides of these issues have acknowledged problems with current statutes. One of the unique problems faced by practitioners who care for pediatric and adolescent patients is the extended duration of liability compared to that encountered for adult patients. In many states, the time frame for filing a medical liability lawsuit can extend beyond 20 years for certain pediatric patients.

A recent survey of American medical students showed that many consider liability risk when choosing a medical specialty, frequently opting for specialties with a lower risk of malpractice claims. This suggests that medical students may avoid certain pediatric specialties because of higher liability risk, leading to a reduced number of these specialists in the future. Work-force demand already exceeds supply in some pediatric specialties.

23 years to file a claim?
In 2007, a study was published analyzing the statutes of limitations periods and other related rules (such as the statute of repose and tolling provisions) that affect the time within which a claimant must bring a claim. The study covered all 50 states and the District of Columbia and was conducted by two attorneys who had backgrounds in medical law.

The statute of repose represents the longest period of time during which a cause of action can arise; therefore, it sets an outermost limit for a claim to be asserted. Tolling, on the other hand, suspends the statute of limitations for a specified period of time because of a “disability” such as being a minor.

For each state, the average, minimum, and maximum values for the statute of limitations in years were calculated for the following groups: newborns, age 6, age 12, and age 25 years. In most states, the length of time a claimant has to bring a claim is longer for the youngest patients and decreases as patients get older due to tolling provisions (Fig. 1). As a result, record maintenance is an issue, particularly when the limitations period for children may be as long as 23 years.

Although the medicolegal system contributes to an environment that escalates the ‘crisis,’ structural problems within the healthcare system may also play a role. In a major study released in 1999, the National Academy of Sciences Institute of Medicine estimated that approximately 98,000 people die each year because of medical errors in hospitals. The healthcare professions and hospitals clearly need to address these issues and advocate for change that places a premium on patient safety.

What should the system do?
The two major goals of the liability system are to provide financial incentives to deter substandard medical care and to compensate those injured by such care. There is some evidence that the current system does not successfully achieve either goal. One study found that injured patients receive only 50 percent of economic costs and evidence that liability claims reduce medical errors and negligence is mixed. Physician review has found that a significant number of paid malpractice claims have no evidence of error.

A third goal of the liability system should be to support a healthcare system that provides appropriate healthcare access. One of the main concerns brought on by the medical liability crisis is access to medical care. Because of increasing medical liability insurance premiums, many physicians have reduced the number of high-risk procedures they perform, opted out of taking emergency department call, taken early retirement, or implemented other measures to reduce liability risk.

Balancing these three goals will present challenges, and the parties involved must work together to improve the system. The medical profession needs to take a more active role in preventing medical mistakes and in improving communication with patients and families. The legislative and legal professions will need to create an environment that emphasizes high quality care and patient safety, while recognizing that trainees will avoid certain specialties if the risks of practicing these disciplines are considered disproportionately high. The costs of defensive medicine will also need to be considered in this discussion.

The United States is currently engaged in a serious political debate about how to reform our healthcare system in a way that improves healthcare access, encourages the highest quality care, and achieves a level of appropriate cost containment based on clinical effectiveness. This dialogue should include a comprehensive review of the liability system to ensure that we provide uniform access to cost-effective, high quality care. The extended period of liability for pediatric specialists needs additional study to evaluate its effects on provider stress levels, recordkeeping, liability insurance financing, specialty choice, and specialty care access.

Kevin G. Shea, MD, is a practicing orthopaedist in Boise, Idaho. Kevin Scanlan, JD, is a partner in the firm of Hall, Farley, Oberrecht & Blanton, P.A. Charles T. Mehlman, DO, MPH, is director of musculoskeletal outcomes research and codirector of the Brachial Plexus Center at Cincinnati Children’s Hospital. Brent T. Wilson is an attorney at Evans Keene, LLP. This article is adapted with permission from Shea KG, Scanlan KJ, Nilsson KJ, Wilson B, Mehlman CT: Interstate variability of the statute of limitations for medical liability: A cause for concern? J Pediatr Orthop 2008;28:370-374.

Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor Douglas W. Lundy, MD.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

E-mail your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

Medical liability definitions and examples

Statute of Limitations
The period of time within which a lawsuit must be filed after an cause of action accrues; after this time period elapses, the right to bring a lawsuit is forfeited. The statute of limitations typically begins (is “triggered”) upon the occurrence of some event allegedly causing an injury or some sort of damage. The statute of limitations is said to “run” from the date the alleged injury occurred, and it will “run out” on a date certain after the injury.

For example, a patient is scheduled for surgery on his right knee on Feb. 1, 2002. Due to a mistake, the operation was performed on the left knee. The statute of limitation to bring a medical liability claim is 2 years from the date of the mistaken surgery. The patient has until Feb. 1, 2004, to bring a claim for medical malpractice.

Discovery Rule
Under this rule, the statute of limitations is not triggered until an injury is discovered (or reasonably should have been discovered). This rule generally refers to situations where the injury is latent in nature, there is fraudulent concealment of the injury, or when a foreign object is left inside the body. This rule has the effect of extending the period for bringing a lawsuit.

In the previous example, assume the surgery was performed on the correct knee, but a sponge was mistakenly left inside the patient’s body. More than 2 years after the surgery, the foreign object was discovered. The discovery rule provides that, if the injury could not be discovered within the limitations period, the patient has 6 months from the date the injury is discovered to file suit. Based on the date of discovery, the patient has until September 1, 2004 to bring a claim for medical malpractice.

Statute of Repose
As opposed to the statute of limitations, the statute of repose places an absolute outer limit on the time during which a claim for injury can arise. The statute of repose terminates the right to bring a lawsuit after a specified period of time elapses, even if an injury has yet to manifest itself or has not otherwise been discovered.

Continuing the example, if the patient’s state also has a statute of repose, which provides that in no event may a claim for medical malpractice be brought more than 4 years after the event causing the injury occurred, and the foreign object was not found until March 1, 2006, the patient’s right to bring a claim for medical malpractice ended on Feb. 1, 2006, and he would have been barred from bringing a claim.

The running of the statute of limitations may be tolled, that is, suspended or stopped, for a specified period of time. A common reason for tolling a statute of limitation is when a minor claims an injury. Tolling has the effect of extending the period for bringing a lawsuit. Whether a statute of repose is affected by a tolling statute depends on the specific language used and can vary from state to state. For instance, in some states the statute of repose is longer for minors or may not begin until the minor reaches a certain age.

For example, a 2-year-old has surgery on her right knee on Feb. 1, 2002. Due to a surgical error, the knee did not heal properly. In the patient’s state, the 2-year statute of limitations for bringing a medical malpractice claim is tolled for persons under the age of 10 years old, and the statute of repose does not apply to minors under the age of 10. The patient would have until Feb. 1, 2014, to bring a claim for medical malpractice.

Maximum time to bring a claim
This concept describes the longest period of time during which a medical provider may be subjected to potential claim for medical malpractice in any given state.


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