September 22, 2006
MEDICAL MALPRACTICE-STATUTE OF LIMITATIONS
By: George Coppolo, Chief Attorney
You asked how long someone has to initiate a medical malpractice lawsuit.
The law requires that a medical malpractice lawsuit be initiated within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered. The law also requires that it be initiated within three years from the date of the act or omission complained of (CGS § 52-584). (The courts typically refer to the two year period as the statute of limitation and the three year limit as the statute of repose). Thus, a person who believes he has been injured because of medical malpractice must initiate the lawsuit within three years of the act of malpractice even if he does not discover and could not have reasonably discovered the injury and its link to the alleged malpractice until more than three years have passed.
One way to get around this three year limit is if the injured person can successfully allege that the physician had a continuing duty to warn him about the malpractice and its consequence. In such a case the state Supreme Court has held that the physician's breach of his continuing duty to warn his patient of the malpractice and its consequence tolls the running of the statute of limitation and repose. This means that both the two and three year periods do not run for as long as the physician breaches his duty to warn the patient about the malpractice and its possible effects.
CONTINUING DUTY TO WARN
The state Supreme Court first considered the issue of the tolling of the statute of limitations in medical malpractice cases based on the theory of a continuing duty to warn in Connell v. Colwell, 214 Conn. 242, (1990)).
The plaintiff (injured person) in Connell argued that the statute had been tolled by the defendant physician's breach of a continuing duty to disclose, the malpractice. The plaintiff's husband had been examined annually by the defendant from 1974 through 1982 because of a family history of prostate cancer. In 1982, he was diagnosed as having prostate cancer from which he died in 1986. The plaintiff sued the doctor in 1987 on behalf of her husband's estate claiming he had been negligent in failing to diagnose the cancer earlier. The trial court dismissed the lawsuit on the grounds that it was barred by both the two-and three-year limitation periods contained in CGS § 52-584.
The Connecticut Supreme Court held that there was no continuing duty to disclose under the facts of the case where the course of treatment between the patient and the defendant had ended and where a proper diagnosis had ultimately been made. But the court left open the possibility that under different circumstances a physician might have a continuing duty to warn that would toll the statute of limitations.
Our Supreme Court has established three requirements for establishing a continuing duty to warn (Sherwood v. Danbury Hospital, 252 Conn. 193 (2000)). The first is that the defendant must have committed an initial wrong upon the plaintiff. In one case the plaintiff claimed that the defendant was negligent by failing to inform her of the risks associated with the blood it was supplying for her blood transfusion.
A second requirement is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related to it. In determining whether the continuing course of conduct doctrine applies to toll the three year limit in CGS § 52-584 the Court has held twice, in the medical treatment context, that continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct. In one case, the doctor's failure to monitor his patient after an initial misdiagnosis was a continuing course of conduct that tolled the statute of limitations. In another case, the court concluded that a physician's negligent failure to warn concerning the potential adverse effects from taking a particular drug is a continuing course of conduct, and that the statute of limitations does not begin to run until the course of conduct is completed.
A third requirement is that the defendants' omissions or conduct amounted to a breach of the standard of care. Thus, the plaintiff must not only prove that there was a continuing duty on the physician's part but also continuing negligence on the part of the defendant based upon a breach of his professional duty of care to the plaintiff.