Very Bad MedMal Law Part 2: Shrinking the Statute of Limitations

As I wrote earlier, your congress is currently considering a very bad bill, which would drastically remove patients’ ability to be compensated for injuries caused by medical negligence. The last post focused on the proposal to cap non-economic damages. Today’s post focuses on another bad aspect of the law that will lead to valid claims being thrown out of court (or never brought): the statute of limitations.


Section 3 of the law is called “Encouraging Speedy Resolution of Claims.”  That sounds good, of course.  But what the bill does is bar claims that are not brought within “three years of the procedure.”  Most states already have rules of this nature, but they also have three exceptions that keep claims from being thrown out when it would be unfair to do so. The new bill acts to counter those protections as follows:

  1. The “discovery rule,” which preserves a claim when the patient did not have reason to know that the injury was because of negligence, as opposed to just a natural result of the surgery, or when the patient did not know that the symptoms she complains of were caused by the surgery as opposed to just naturally occurring.  The new law prevents all 50 states from having this protection. In fact, patients would no longer get the full three years: they would get only one year from the time they “should have discovered” the injury, which is capped at three years. So if they know they are injured after a procedure, but they do not find out they were injured because of negligence until one year has expired, they do not get to bring a claim at all.  No matter how reasonably they have acted.
  2. The “continuous treatment rule,” which preserves a claim for a patient who continues to see the doctor that injured her, so that doctor can try to fix the problem caused by negligence.  In that situation, the statute does not begin to run until the allegedly negligent doctor stops treating the condition in question.  The new law prevents all 50 states from having this protection. 
  3. The “minor tolling rule,” which preserves the claim of a child until the time the child turns 18. This protects against situations where parents fail to assert the rights of the child. It is particularly important in cases where young children are harmed in ways that require a lifetime of care.  If the parent does not sue in time, the child can never bring a claim, even though the costs of the injury will continue the child’s entire life.  That often results in Medicaid picking up the costs, which means money that should come from a medical malpractice insurance company instead comes from the taxpayers.  The bill removes this protection for children over 6 years old but lets states choose to preserve claims until the child turns 18. 

The bill also recognizes that some states already have more draconian time limitations, and explicitly lets those states keep those limitations.


The first question is: why a federal law?  Each state currently has the right to balance these considerations carefully, in the ways their doctors, patients, and voters see fit. A uniform law is not needed.

The second question is: why do we want to do away with meritorious cases in these situations?  Why, when the patient did not know there was a claim, do we want to punish the patient?  Why, when the patient and the doctor are working together to minimize the damages and avoid a lawsuit, do we want to punish the patient?  Why do we want to punish kids who need a lifetime of treatment just because their parents did not realize there was a reason to sue?  Why shift that burden to the taxpayers rather than the doctors’ insurance companies, where it belongs?

And will this really work to limit claims?  Or will it just make patients bring lawsuits before they have had the chance to fully investigate the claims.

Regardless, you should tell your Congressperson how stupid you think this idea is.

Peter Mullenix