Medical Malpractice Statute Held Unconstitutional

A nine-year-old boy suffered headaches, dizziness, nausea, weakness in the legs, and double vision. He underwent an MRI, which a doctor reviewed and found to be normal. Later when the boy was 17, he underwent another MRI reviewed by a different doctor. The second doctor found a serious condition, and reviewed the previous MRI that had been conducted when the boy was nine. The second doctor found the condition had been present at that time as well.

The boy brought a medical malpractice lawsuit. The trial court ruled that they claim was barred by the statute of limitations.[1]

Any personal injury or medical malpractice claim must be brought before the applicable statute of limitations runs. If a person is not competent to bring the lawsuit, the statute is tolled.

A medical malpractice claim must be brought within three years of the act or omission, or within one year of discovering the alleged malpractice.  The statute imputes to the minor a parent’s or guardian’s knowledge of facts that give rise to the medical malpractice claim.

The combined effect of the two statutes is that for any other type of claim, a minor may bring the claim within one year of reaching the age of 18, rather than one year of when a parent or guardian knew or should have known of the claim. Also, the statute of limitations is tolled for someone incompetent to bring a medical malpractice lawsuit for reasons other than being a minor, but is not tolled for minors.

The Washington Supreme Court ruled there was no reasonable grounds to discriminate against minors. The Court noted that courts in other jurisdictions had reached the same conclusion. The rule places a disproportionate burden on a minor whose parent or guardian lacks the sophistication or incentive to bring a medical malpractice claim – for instance foster children, children whose parents themselves are minors, or who are simply unconcerned.

While this was a victory for minors who are victims of medical malpractice, it is far better to contact an attorney early and avoid the whole issue. Potential claims can be properly investigated and brought well in advance of the statute of limitations if an attorney is on board early.

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By personal injury attorney Travis Scott Eller

[1] Schroeder v. Weighall, M.D. et al., ____ Wn.2d ____ (No. 87207-4 January 16, 2014).

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