Statutes of Limitations and Repose
What's the difference and why does it matter?
Most radiologists are at least generally familiar with the concept of a statute of limitations. Conversely, very few have heard of a statute of repose.
This month, we'll attempt to familiarize readers with the legal concepts behind the two statutes and explain why it's important for radiologists to understand them.
Although they can also supply to criminal charges, for our purposes, statutes of limitations are laws prescribing limits on the right to bring a civil action or lawsuit. In short, they provide that a court action can be brought only during a specified period of time after the right to sue accrued. For example, state law may provide a four-year statute of limitations for medical malpractice actions. In a perfect world, this would mean that a physician could only be sued for malpractice during the four-year period after the physician treated the patient or, in the case of a diagnostic radiologist, interpreted a study. This is based on the idea that the harm to the patient occurred during treatment or diagnosis.
However, legislatures and courts have fashioned numerous exceptions to statutes of limitations. In most states, for example, the statute of limitations for malpractice is suspended, or "tolled," while a child is a minor, so the countdown only begins when the child turns eighteen. In such cases, in a state with a four-year statute, the patient would have until his or her 22nd birthday to file suit. Some states have determined that in malpractice cases the clock should being to run on the statute of limitations only when the injury to the patient is discovered, according to the theory that this is when the patient first has a cause of action. This could include a surgery case in which an instrument or sponge is left inside a patient but not discovered until sometime later, or a mammography case in which an alleged missed read is followed by the discovery of breast cancer some years later. This can obviously result in physicians being required to defend themselves years after they interpreted a study or treated a patient.
Statutes of repose place an absolute limit on the period during which a claim may be brought, with no exceptions and no adjustments for discovery, age, etc.
Statutes of repose, on the other hand, place much stricter limits on the period during which a lawsuit can be filed. They are intended to block any lawsuit after the occurrence of an event other than the claimed injury. In short, statutes of repose place an absolute limit on the period during which a claim may be brought, with no exceptions and no adjustments for discovery, age, etc. The philosophy behind statutes of repose is that a potential defendant should not be required to defend certain types of claims indefinitely. These statutes were originally designed for such matters as construction and product liability, where a defect might not be discovered until years or even decades after the purchase date and any evidence may no longer exist. In fact, in some cases, a statute of repose may bar a lawsuit even before the injury occurs, such as when the period of repose is 10 years and an 11-year-old toaster catches fire or a section of a 20-year-old building sags or collapses. Consequently, at the expiration of the period of repose, there is no longer a cause of action. This is not a defense to a lawsuit; rather it is the legislature saying that after 10 years, no cause of action exists at all. While there may still be a harm, the law does not provide a remedy.
Obviously a statute of repose can provide greater certainty than a statute of limitations. As a result, some states have enacted as part of their tort reform efforts a statute of repose for medical malpractice claims. Recently, the Supreme Court of Ohio upheld the state's four-year statute of repose for medical malpractice cases against a claim that it violated the state constitution. In the case, the patient saw the defendant physician during 1995, 1997, and 1998, at which time his records showed he had elevated liver enzymes. In December 2008, a liver lesion was discovered, and the patient sued the physician, despite the fact that he had least seen the physician years before he complained of abdominal pain. The court held that the legislature has the right to specify which injuries will be recognized in the state and then to set "a time limit after which an injury is no longer a legal injury."1
As note above, enacting a statute of repose for medical malpractice can be a new approach in physicians' state legislation efforts toward tort reform. Such legislation, combined with the Supreme Court of Ohio's decision upholding the Ohio statute, may prove to be powerful tools in protecting physicians from outdated and unfair claims.
By Bill Shields, JD, LLM, CAE, and Tom Hoffman, JD, CAE
1. Ruther v. Kaiser. Slip Opinion No. 2012-Ohio-5686. Dec. 6, 2012.