Change to Medical Malpractice Statute of Limitations For Minors
News & Events | Statute of Limitations | Washington State Law
By Arthur D. Leritz
February 11, 2014
Navigating a personal injury claim can be daunting – especially when it involves a claim of medical negligence by a healthcare provider. This is especially true in dealing with the “Statute of Limitations” in such a case – the deadline when a medical malpractice claim must be filed or your claim will be forever barred. Generally, a medical malpractice claim must be filed within three years of the negligent act or omission, or one year after the patient discovered or reasonably should have discovered the negligent act or omission, whichever is later. Confused yet? It gets worse: Prior to a recent Washington Supreme Court case, this time period was not suspended if the person injured by medical negligence was a minor, as is common in other negligence cases — the theory being that knowledge of the negligent act would be imputed to the minor’s parents and they could file suit on behalf of the minor.
This changed with the recent case of Schroeder vs. Weighall. In that case, the injured party, a minor at the time of the alleged negligence, filed his lawsuit 14 months after discovery of the negligence — two months too late under the old statutory scheme. The Washington Supreme Court in Schroeder held that it is unfair to particularly burden a vulnerable minority (minors) not accountable for their status and that the RCW 4.16.190(2) places a disproportionate burden on the child whose parent/guardian lacks the knowledge or incentive to pursue a claim on the child’s behalf. Courts in other jurisdictions have recognized this problem, noting that statutes similar to RCW 4.16.190(2) have the greatest impact on children in the foster care system, children with minor parents and parents who are simply not concerned.
Therefore, the Court in Schroeder struck down RCW 4.16.190(2) as violating the State’s equal protection clause of the State Constitution, holding that the Statute of Limitations for medical negligence is tolled (suspended) during the time the person is a minor.
If you have any questions on the Statute of Limitations for a medical negligence claim or questions on other Statutes of Limitation, the attorneys at Adler Giersch, PS are ready and willing to assist you.