Doctor's PI Program

#81

From the Desk of:

 Mark Studin DC, FASBE (C), DAAPM, DAAMLP
 
 “Statute of Limitations, the Law & Lawyers”

 

When working with the legal profession, you need to understand the language of the lawyer. In our ongoing medical-legal education, statutes of limitations is the current topic. The reason a statute of limitations is so important is that many lawyers are either overburdened, too distracted, lazy or just don’t care enough to pay careful attention to their cases and often wait until the 11th hour and 59 minutes and 59 seconds to act or don't act at all. I have witnessed every one of those scenarios all too often in my last 40 years of practice and the ones who get screwed are your patients.
 
 
When communicating with lawyers and their staff regarding educational topics, it is important to stress that everyone in the office needs to be educated. The reason is that everyone who looks at a medical report needs to understand terms and definitions. A lawyer can have a client with a myelopathy and the lawyer and/or his/her staff might not understand that word or its significance. A case might pass the statute of limitations causing the lawyer to lose the right to work the case on behalf of your patient. This is often due to a lack of knowledge by both the lawyer and his/her staff.
 
 
Once you start to understand the rules of law and the application of medical reports, it will make it easier to connect with the lawyers. You have to start speaking their language, as that will be a bridge to a better relationship. The lawyer will also respect you as a professional at a much higher level because you have gone through the effort of understanding his/her needs on an ethical level.

 

Statute of limitations is a critical concept to understand in the medical-legal world and one I talk about in every presentation I give. It gets the lawyer to know immediately that I understand the issues from his/her prospective and I am not simply “whining for referrals,” a point not overlooked by my audience and an immediate “attention grabber.” The following is a legal perspective about statutes of limitations followed by a graph of every state’s statute laws.

 

Statute of Limitations

A type of federal or state law that restricts the time within which legal proceedings may be brought.

Statutes of limitations, which date back to early Roman law, are a fundamental part of European and U.S. law. These statutes, which apply to both civil and criminal actions, are designed to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become obscure through the passage of time or the defective memory, death, or disappearance of witnesses.
The statute of limitations is a defense that is ordinarily asserted by the defendant to defeat an action brought against him after the appropriate time has elapsed. Therefore, the defendant must plead the defense before the court upon answering the plaintiff's complaint. If the defendant does not do so, he is regarded as having waived the defense and will not be permitted to use it in any subsequent proceedings.
Statutes of limitations are enacted by the legislature, which may either extend or reduce the time limits, subject to certain restrictions. A court cannot extend the time period unless the statute provides such authority. With respect to civil lawsuits, a statute must afford a reasonable period in which an action can be brought. A statute of limitations is unconstitutional if it immediately curtails an existing remedy or provides so little time that it deprives an individual of a reasonable opportunity to start a lawsuit. Depending upon the state statute, the parties themselves may either shorten or extend the prescribed time period by agreement, such as a provision in a contract.

Criminal Actions
A majority of states have a statute of limitations for all crimes except murder. Once the statute has expired, the court lacks jurisdiction to try or punish a defendant.
Criminal statutes of limitations apply to different crimes on the basis of their general classification as either felonies or misdemeanors. Generally, the time limit starts to run on the date the offense was committed, not from the time the crime was discovered or the accused was identified. The running of the statute may be suspended for any period the accused is absent from the state or, in certain states, while any other indictment for the same crime is pending. This suspension occurs so that the state will be able to obtain a new indictment in the event the first one is declared invalid.

Civil Actions
In determining which statute of limitations will control in a civil action, the type of Cause of Action that the claim will be pursued under is critical. States establish different deadlines depending on whether the cause of action involves a contract, personal injury, libel, Fraud, or other claim.

Recovered Memory: Stopping the Clock
Statutes of limitations are intended to encourage the resolution of legal claims within a reasonable amount of time. Courts and legislatures have had to reconsider the purpose of time limits in dealing with the controversial issue of Recovered Memory by child Sexual Abuse victims. For the most part, the clock has been stopped until a victim remembers the abuse.
In the 1980s some mental health therapists began exploring the nature of child sexual abuse. They contended that memories of childhood trauma are so disturbing that the child represses them. Many years later, while in therapy or by happenstance, the person remembers the traumatic events. Therapists built on this concept, working with patients to fully recover these memories.
Victims of child sexual abuse who sought to sue their abusers for damages faced a statute of limitations question: Had the time expired to file a civil lawsuit because the memory of abuse was not recovered until many years after the actual abuse? Courts that faced this issue for the first time sought ways to circumvent the time barrier. One method was to apply the "discovery rule" found in Tort Law. The discovery rule applies if the injury is one that is not readily perceptible as having an external source. Thus, a person who has serious mental health problems but does not know the cause will be allowed to toll (suspend the running of) the statute of limitations until he or she discovers that the injury was caused by the defendant's tortuous conduct.
Legislatures have been urged to amend their statutes of limitations to permit recovered memory plaintiffs to sue their abusers. Between 1989 and 1995 24 states had amended their laws. By 2003, 42 states had codified some form of a recovered-memory law on their books, while one state admitted recovered-memory evidence pursuant to its Common Law rules. Typically recovered-memory laws provide that the action must be filed within a certain number of years after the plaintiff either reaches the age of majority or knew or had reason to know that sexual abuse caused the injury. Because of these judicial and legislative changes, many lawsuits have been filed alleging child sexual abuse that occurred many years before, sometimes as long as 20 years earlier.

 

Personal Injury Statute of Limitations

The time period within which you can bring a lawsuit for personal injuries

State

Length of Limitation

Code Number

State Website Link

Alabama

2 years

Title 6, Ch. 2, 6-2-38 (l)

State Website Link

Alaska

2 years

Sec. 9.10.070

State Website Link

Arizona

2 years; 1 year libel/slander

Title 12, Article 3, Secs. 12-541, 12-542

State Website Link

Arkansas

3 years (libel, wrongful death), 2 years med malpractice; 1 year slander

Secs. 16-56-104, 16-56-105, 16-114-203, 16-62-102

State Website Link

California

2 years for intentional torts; 1 year for slander, libel

Code of Civ. Proc. Sec. 335.1, 340

State Website Link

Colorado

2 years; 1 year libel/slander

Colo. Rev. Stat. Secs. 13-80-102, 13-80-103

State Website Link

Connecticut

2 years

Conn. Gen. Stat. Ch. 926 Sec. 52-584

State Website Link

Delaware

2 years

Title 10, Ch. 81, Sec. 8119; Title 18, Chapter 68, Sec. 6856

State Website Link

Dist of Columbia

3 years; 1 year libel/slander

Title 12, Ch. 3, Sec. 12-301

State Website Link

Florida

4 years; 2 years medical malpractice, label/slander

Title 8, Ch. 95, Sec. 95.11

State Website Link

Georgia

2 years; 1 year libel/slander

Sec. 9-3-33

State Website Link

Hawaii

2 years

Rev. Stat. Secs. 657-4, 657.7, 657-7.3

State Website Link

Idaho

2 years

Title 5, Ch. 2, Sec. 5-219

State Website Link

Illinois

2 years; 1 year defamation

735 ILCS 5/13-201, 13-202, 13-212

State Website Link

Indiana

2 years

Title 34, Art. 11, Ch. 2, Sec. 34-11-2-3, 34-11-2-4

State Website Link

Iowa

2 years

Chapter 614, Section 614.1

State Website Link

Kansas

2 years; 1 year libel/slander

Chapter 60, Art 5, Sec. 60-513

State Website Link

Kentucky 1 year Title 36, Chapter 413, Sec. 413.140 State Website Link
Louisiana 1 year Ci. Code. Art. 3492 State Website Link
Maine 6 years; 2 years libel/slander Title 14,Part 2, Ch. 205, Sub. 1, Secs. 752, 753 State Website Link
Maryland 3 years; 1 year libel/slander Courts and Judicial Proceedings, Sec. 5-101 State Website Link
Massachusetts 3 years Title 5, Ch. 260, Secs. 2A and 4 State Website Link
Michigan 3 years; 1 year libel/slander Chapter 600, Act 236, Ch. 58, Sec. 600.5805, number 9 State Website Link
Minnesota 2 years Ch. 541, Sec 541.05, 541.07 State Website Link
Mississippi 3 years; 2 years malpractice; 1 year libel/slander Title 15, Ch. 1, Secs. 15-1-36, 15-1-35, 15-1-49 State Website Link
Missouri 5 years; 2 years libel/slander; 2 years malpractice Title 35, Ch. 516, Secs. 516.105, 516.120, 516.140 State Website Link
Montana 3 years; 2 years libel/slander Title 27, Ch. 2, 27-2-204 and 27-2-207 State Website Link
Nebraska 4 years; 1 year libel/slander; 2 years malpractice Title 25, Section 207, 25-207 State Website Link
Nevada 2 years Chapter 11, Sec 11.190 State Website Link
New Hampshire 3 years Title LII, Chapter 508, Sec. 508.4 State Website Link
New Jersey 2 years; 1 year libel/slander Title 2A, Ch. 14, Sec. 2A:14-2, 14-3 State Website Link
New Mexico 3 years Ch. 37, Art. 1, Sec. 37-1-8 State Website Link
New York 3 years; 2.5 years malpractice; 1 year libel/slander Civil Practice Laws and Rules, Art. 2, Secs. 214, 214.s, 215 State Website Link
N. Carolina 3 yearsl 1 year libel/slander; 2 years wrongful death Title 1, Section 1-52, 1-54 State Website Link
N. Dakota 6 years; 2 years in wrongful death, libel/slander Title 28, Ch. 1, Secs. 28-01-16 and 28-01-18 State Website Link
Ohio 2 years Title 23, Ch. 5, Sec. 2305.10 State Website Link
Oklahoma 2 years; 1 year libel/slander Title 12, Ch. 3, Sec. 95 State Website Link
Oregon 2 years for medical malpractice; 2 years for personal injury; 1 year libel/slander Ch. 12, Secs. 12.110, 12.115, 12.120 State Website Link
Pennsylvania 2 years; 1 year libel/slander 42 PA Con. Stat. Sections 5523, 5524 State Website Link
Rhode Island 3 years; 1 year libel/slander Title 9, Ch. 1, Sec. 9-1-14 State Website Link
S. Carolina 3 years; 2 years libel/slander Title 15, Ch. 3, Secs. 15-3-530, 15-3-545, 15-3-550 State Website Link
S. Dakota 3 years; 2 years libel/slander, medical malpractice Title 15, Ch. 2, Secs. 15-2-14, 15-2-14.1, 15-2-15 State Website Link
Tennessee 1 year; 6 months libel/slander Title 28, Ch. 3, Secs. 28-3-103, 28-3-104 State Website Link
Texas 2 years; 1 year libel/slander Civ. Prac. & Rem Code, Title 2, Ch. 16, Secs. 16.002, 16.003 State Website Link
Utah 4 years; 2 years wrongful death; 1 year libel/slander Title 78, Ch. 12, Sec. 78-12-25 State Website Link
Vermont 3 years Title 12, Ch. 23, Secs. 512, 521 State Website Link
Virginia 2 years; 1 year libel/slander Title 8.01, Ch. 4, Secs. 8.01-243, 8.01-247.1 State Website Link
Washington 3 years; 1 year libel/slander Title 4, Ch. 16, Secs. 4.16.080, 4.16.100 State Website Link
West Virginia 2 years Chapter 55, Sec. 55-2-12 State Website Link
Wisconsin 3 years; 2 years libel/slander Chapter 893, Secs. 893.54, 893.55, 893.57 State Website Link
Wyoming 4 years; 1 year liable/slander Title 1, Ch. 3, Sec. 1-3-105 State Website Link