Malpractice litigation is a strange experience for most doctors. We're accustomed to taking charge under difficult circumstances. In a medical malpractice lawsuit, however, we can find ourselves awash in unfamiliar legal vocabulary, foreign legal proceedings, and a very different culture from that of medicine. And guess what? Exposure to prime-time legal drama just isn’t enough to teach us everything we’d like to know!
Sadly, all that unfamiliarity can leave us feeling incompetent just when we want to feel on top of our own malpractice defense. To lessen that burden a bit. I’m kicking off a series covering some fundamentals of malpractice litigation. These “Malpractice Defense Basics” will crop up regularly, interspersed with other posts.
Let's start with an element relevant before a suit is filed -- the statute of limitations.
I'm not a lawyer. Not now, likely not ever! Think of me as a translator, someone who’s visited a foreign land and returned to tell the tale. I aim to make the fundamental features of malpractice litigation more approachable. For detail regarding how any particular topic applies to your unique situation in your state, you'll need your attorney. (Did I mention I'm not a lawyer? Not now, likely not ever?)
I'll make no assumptions about what you do or don't know about medical malpractice defense. I knew little before becoming a defendant, and what little I knew flew right out of my head once I was under fire. What's more, many physicians practicing in the U.S. hail from other nations where the justice system may function differently. Consequently, I’ll try to build concepts from the ground up.
What is a statute of limitations?
In the U.S., as in much of the industrialized world, we cherish the ideal that the average citizen should have access to the courts. The legislative branch has power to place limits on how and when a citizen has the power to seek legal recourse, however. Frequently, the law limits how long a person has to file a lawsuit in relation to a given event. The laws defining that time window are called “statutes of limitations.”
What is the purpose of statutes of limitations?
Statutes of limitations exist to protect defendants and keep things orderly. Limiting the time window for filing a lawsuit serves to minimize lawsuits arising so far after the events in question that records no longer exist or witness testimony is lost entirely. That’s a good thing! They also protect certain defendants from blackmail, insofar as a potential litigant does not have the liberty to sit around threatening a lawsuit forever.
How does this apply to malpractice litigation?
Statutes of limitations vary from state to state. In Ohio, for example, the general time-frame for filing a claim alleging medical malpractice is one year from the day when “the cause of action” occurred. (Click here) In some other states, the time-frame is two years or more.
Additional factors may come into play:
The clock on the statute may begin to run when the patient discovers or reasonably should have discovered that a problem existed, even if that is some time after an event first occurred.
Some states make exceptions for cases where a surgical instrument is left in the patient.
The statute of limitations may be longer if the patient died and their family alleges “wrongful death.”
It may be longer if the patient is a minor or “of unsound mind.”
Can litigants extend the statute of limitations?
In some states, an individual who is considering filing a malpractice lawsuit has the right to extend the window defined by the statute of limitations by a specified number of days IF they provide timely notice to the physician, hospital, or other potential defendant that they are considering doing so BEFORE the original window expires. Here in Ohio, the law allows an extension of 180 days. Consequently, this notice is commonly called a “180-day letter.” In Texas, however, the rule is 75 days, and in some states, this type of extension may not exist at all.
What to do upon receiving correspondence that you may be sued
Receiving a letter indicating that someone is thinking about whether to sue you is stressful! If this happens to you, I recommend that you take the following steps:
Recognize that this does not mean that a malpractice lawsuit has been filed. In many instances, something akin to a 180-day letter is sent, but the potential plaintiff either decides or is advised not to pursue a lawsuit.
Reach out immediately to your malpractice insurance carrier, hospital or group risk manager, or both. Malpractice insurance coverage is often contingent upon a physician’s notifying the carrier as soon as any reasonable possibility emerges that a claim may arise. That is to say that if you don't notify them, you put your coverage at risk. You definitely don't want that! Furthermore, your malpractice claims manager will have useful information for you. They will monitor the situation with you and can walk you through the steps you’ll need to take along the way. Sure, this event may be foreign to you, but it's your malpractice claims manager's bread and butter. Your insurance premiums pay them to work on your behalf. Give them the chance to earn their keep.
Protect the medical record like a ninja! Do not alter it. Do not deface it. Do not risk misplacing it. Ask your insurance claims manager or risk manager for direction in this regard.
Sit tight and take care of yourself. Yes, I know that sounds crazy-impossible, but this is a moment to focus on yourself. Don't attempt to communicate with the patient or their lawyer; your lawyer will do that. Don't dive into PubMed or other literature searches related to the condition affecting the patient; it will not serve you in the long run. Nor will it serve you to randomly review the medical or surgical details of the case with colleagues or friends.
If you want to seek out support on the emotional front prior to or in the midst of malpractice litigation, by all means, do so, but choicefully! As a coach, I am here to provide confidential support to potential defendants. Or, you may wish to meet with your personal physician, a psychologist, or a clergyperson. Think of it as just one more way to put your oxygen mask on before returning to your work of assisting others.