A Minor's Claim Alleging Medical Malpractice Now Tolled
January 31, 2014
A minor’s medical malpractice claim has traditionally been subject to the same statute of limitation requirements as that of an adult. However, the recent Washington State Supreme Court decision of Schroeder v. Weighall, M.D., et al., has declared RCW 4.16.190(2) unconstitutional.
This article does not constitute legal advice nor does it create an attorney-client relationship. Contact an attorney at Etter, McMahon, Lamberson, Clary & Oreskovich, P.C. to find out more about the recent decision by the Washington State Supreme Court.
Statute of Limitations
Traditionally, the statute of limitations on tort claims which a minor has is tolled until the minor reaches the age of majority. However, under RCW 4.16.190(2) the statute of limitations for a minor’s medical malpractice claim is not tolled.
RCW 4.16.350 provides that a lawsuit which alleges injuries caused by medical negligence must be filed within three years of the “act or omission” giving rise to the claim, or within one year after the patient “discovered or reasonably should have discovered” that the injury was caused by the alleged medical negligence. The statute imputes the knowledge of a parent or guardian upon the injured minor.
Washington State Supreme Court Decision
The recent decision issued by the Washington State Supreme Court in Schroeder v. Weighall, M.D., et al., declared RCW 4.16.190(2) to be in violation of article I, section 12 of the Washington State Constitution. The Court recognized that “compelling a defendant to answer a stale claim is a substantial wrong.” However, the Court also provided that “a stale claim is not a substantial wrong – at least, not substantial enough to warrant preventative legislation – when it is brought by a plaintiff who is unable to sue at the time of injury for any reason other than minority.” The Court reasoned that RCW 4.16.190(2) places a large burden on children whose parent or guardian either lacks the knowledge or incentive to pursue a medical malpractice claim on the child’s behalf.
Impact to Practitioners
The Court’s decision in Schroeder will greatly impact the timing and litigation of medical malpractice claims. A minor who is injured as a result of alleged medical negligence, now has the option of waiting until their twenty-first birthday (age of majority plus three year statute of limitations) to file a claim. Stale medical malpractice claims brought within the new limitation period will likely be subject to faded memories, missing records, and missing witnesses. As a result, the cost of litigation will likely increase. However, the real effect remains to be seen.
Etter, McMahon, Lamberson, Clary & Oreskovich, P.C. attorneys advise clients in a variety of complex areas, including advising medical professionals against claims of negligence or malpractice. Navigate to the Contact page to speak with an attorney today.
Jeffrey R. Galloway is an associate at Etter, McMahon, Lamberson, Clary & Oreskovich, P.C., in Spokane, Washington. Mr. Galloway’s practice emphasizes civil litigation, employment law, medical malpractice and other complex litigation.
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