STATUTES OF LIMITATION AND DISCOVERY

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In earlier times, life was simpler, and tort law was as well. When plaintiffs suffered an injury from negligence, plaintiff’s awareness was pretty much immediate, thus commencing the ticking of the statute of limitations clock.

With scientific advancements in medicine, relationships between medical providers and patients became more complicated, and often, more remote. In such instances, plaintiff was often not immediately aware of injury caused by negligence.

In all states, there are statutes of limitation that establish time limits for bringing legal actions arising out of alleged negligence by medical providers. While it is clear that plaintiffs often needed some time before manifestation of injuries became apparent, the potential defendants could not be expected to endure indefinte exposure to litigation. The law perceived it unfair to permit the plaintiff to purposely let time pass before bringing action against the unsuspecting defendant.

This raises the obvious question — when does a cause of action arise and begin the time clock to tick? There is considerable case law on this subject and it is too much to go into in this space. Suffice to say that any defendant should be advised of potential liability within enough time to permit the mounting of an adequate defense. This prevents plaintiffs from “sitting on” his or her evidence while waiting for the defendant’s evidence to deteriorate to the point of disadvantage. For the plaintiff, it means that he or she is not penalized for failing to bring a cause of action before the plaintiff knows or should know about its genesis.

It is important that attorneys not wait until the last minute when they are facing a statute of limitations to begin looking for a medical expert for their case. Medical Opinions Associates has had to decline involvement in cases because attorneys left insufficient time to engage the most appropriate expert. This is totally unfair to the plaintiff and may even lead to action being brought for legal malpractice.

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