You have surgery for sinus trouble but do not get any relief because of negligence by the ENT specialist, who performed the surgery. He continues to treat you for another 10 years. Can you still bring a medical malpractice lawsuit
, even though you realized you have been the victim of malpractice, after the operation 10 years earlier but did not file your lawsuit?
In some states you can. The clock does not start until after the last treatment for the same or a related condition. Continuing treatments for the same sinus trouble would stop the clock, so would respiratory trouble or ear disease, if they were complications of the sinus trouble. But, treatment for a sprained ankle or a stomach complaint would not do it, because they are not related to the sinus disease.
Some people use this law to bring a medical malpractice case to life, long after the time limit has run out. When they find out too late the
doctor has done something wrong, they go back and ask for another treatment. That can automatically start the clock running again.
In a Michigan case, a man had over 200 hair transplants for baldness. He liked them at first but later decided he did not like them. As time went on, he became more and more dissatisfied and finally decided to sue the dermatologist for medical malpractice. However, the two-year time limit had run out, so his lawyer told him to go back to the doctor and get just one transplant to cover a small bare spot. The unsuspecting dermatologist did it, and the very next day, the man’s lawyer filed a medical malpractice lawsuit for everything that had been done years before. The single treatment started the clock again.
This means legal disability, not physical disability. It includes minors, mental incompetents, persons in a coma, or persons who are physically prevented from exercising their legal rights, such as military personnel serving abroad or people in jail. Anyone who is prevented from exercising his or her legal rights for good reason is considered legally disabled and the Statute is Tolled (the clock is stopped) until the legal disability is removed. Most states do not start counting until the disabled person, or a legal guardian, is able to assert their legal rights.
If a child is injured, the clock may not start running until the child reaches age 10 or even full adulthood. Other examples of tolling the statute are: if a person is temporarily, mentally incompetent because of an overdose of drugs given by a doctor and is spaced out for a long time, or if a person is confined in a mental institution. It may not start until after the person is released and has become mentally competent again. Some states even extend the time limit for people in prison. A person in prison is usually not in a position to do anything about it until after they are released. Fundamental fairness requires an extension.