What if you got an experimental or unauthorized drug from a friend, who brought it into the U.S. from another country?  It is possible, but not very likely, that the government might prosecute her for practicing medicine without a license.  But, you are out of luck.  Since she did not hold herself out as a doctor, there was no doctor-patient relationship and no standard of care.  You have only yourself to blame for taking professional advice and medicine from a layperson.

If a doctor is going to use a risky or experimental drug, an unauthorized medical treatment or device, he has to explain it carefully and have you sign a special consent form, which outlines all the risks and why it is necessary to take extra risks in your case.  If the risks are not fully explained, and you do not consent with your eyes wide open and it harms you, you can sue in strict liability without having to show that the doctor did anything wrong, other than give you a drug, medical treatment, or device that was not approved as safe, or for a particular use, by the federal government.

There is an old saying that a dog is allowed one bite.  Actually, a dog is not allowed any bites.  In olden times, when people were kicked or run over by horses, gored by bulls, or bitten by dogs, the law said the owner of a tame, domestic animal cannot be held liable for harboring a dangerous animal, unless he has some warning that it is dangerous.  So, an owner could not be sued the first time a dog bit or a horse kicked.  But, after the first attack, the owner had what lawyers call scienter, which means he knew the animal was dangerous, and anybody else it attacked could sue him.

That same older legal theory applies to medicine today.  If a doctor gives you a drug and does not know you are allergic, it is not his fault if you have a reaction.  However, if he knows you have had a reaction, or are likely to develop one, and gives you the drug, he has scienter and is responsible for whatever happens.  If the drug is one which causes a lot of reactions, the doctor must also check carefully to learn whether you might be allergic to it.

A South Carolina woman went to the hospital for removal of a kidney stone.  When she gave a history of sensitivity to penicillin, it was clearly recorded in her chart.  But, just before surgery, the surgeon ordered IV administration of another drug, which should never be given to patients with a sensitivity to penicillin.  The woman died on the operating table.  Her family sued and won, because the doctor committed medical malpractice by failing to read her chart and gave her a drug to which she was very likely to be sensitive.

The Rule Is: If you are allergic, or have sensitivity to a drug, the doctor is only responsible for a bad reaction if he knows, or should have known, about your sensitivity.  But, this does not excuse carelessness.  He must still double check your medical history before giving you a drug that is apt to cause a bad reaction, especially if it is one that is known to be dangerous or cause a lot of reactions.

A Mississippi woman was given a vitamin shot in a doctor’s office and developed a severe infection with permanent scarring at the site of the injection.  She claimed the injection had been contaminated and sued both the doctor and the manufacturer of the vitamin solution.  The manufacturer said that nobody had tested the vial to show the vitamin solution was actually contaminated.  However, the court said the injury was of the type caused by a contaminated injection.  The manufacturer was held liable under strict liability.

In a Texas case, a vial of medicine to be used in an eye operation was sterilized by placing it in a pan of strong formaldehyde solution.  When the drug was drawn out of the vial and into a syringe, it was contaminated with the formaldehyde and caused serious eye damage.  The patient sued the hospital and won.  The court said that the hospital had made an implied warranty that the drug was fit for use in the eye.  When it injured the patient, the hospital was liable.  The woman could also have sued the manufacturer.

In a Nebraska case, a woman fell and fractured her hip.  The doctors put in a prosthesis (artificial hip joint) that broke because of a manufacturing defect and had to be replaced.  During the second operation, the patient died of a pulmonary embolism (blood clot to the lung).  Since the second surgery would not have been necessary, if the prosthesis had not been defective, the family sued the manufacturer.  They also sued the hospital as the retailer, because it had charged her insurance company for the prosthesis.  Some surgeons buy their own surgical implants.  If that had happened in this case, the doctor could have been held liable as the retailer.  However, since he had not, and the patient’s death was not due to medical malpractice, the doctor was not sued.

There is an important exception to the stream of commerce theory.  If a piece of equipment has been changed or modified in any way, after it was bought, that may cut off the liability of the manufacturer and everybody else “upstream”, who are only responsible for the device as it was sold.  The people who altered it would be the only ones liable, especially if the alterations or repairs played any part in the injury.  If the wheelchair’s brakes in the Wisconsin case we discussed earlier had failed because a hospital repairman had worked on them, the hospital would have been liable for the faulty repairs, and the manufacturer would have been cleared.

Could the patient also sue the doctor?  Yes.  There is always the chance that a surgical implant will be found to be defective, damaged in handling, or accidentally contaminated, so it cannot be used.  A patient obviously cannot be kept on the operating table under anesthesia, while the factory ships a replacement.  So, the surgeon and the hospital have a duty to be sure that a sterile back-up is available in the operative room in case anything happens.  But, that is malpractice, which is different from the strict liability we are discussing.  The patient would have to show they were both guilty of negligence and failed to anticipate the mishap, which would not be too difficult.

What if you do not find out you were injured by some machine or device until a long time later, when the product that injured you has been thrown away and can no longer be examined for flaws?  What if the defective wheelchair, the contaminated injection vial, or the short-circuited heating pad have been thrown away by the time your lawyer asks to have them examined?  How can you prove you were injured?

The Rule Is: It does not matter.  All you have to do is show your injury was of the type that could have been caused by such a defective product.  Then the defense has to prove that it was not.  You do not have to produce the actual item that harmed you, especially if you can show that it is no longer available.

Years ago, if a manufactured product injured someone, the only person who could bring a lawsuit was the person who had bought the product.  If it injured anyone else, there was nothing they could do about it, because the law said they did not have what lawyers call Privity of Contract with the manufacturer.  The manufacturer was only responsible to the people who bought its product and did not have any responsibility for other people who might use it and be injured.

In an old Wisconsin case, a mother and her infant were leaving the hospital in a hospital wheelchair.  The brakes were defective and allowed the wheelchair to roll into the street, where it was hit by a car.  The infant was killed.  When the parents sued the company that made the wheelchair and the hospital, the judge dismissed the suit.  He said the company had no responsibility to the parents, because it had not sold them the wheelchair.  The hospital was not liable, because it had not manufactured the wheelchair and did not know it was defective.

That theory no longer applies to injuries caused by a defective product.  Today, if you are injured by a manufactured product or device, and not by someone’s actions, every person who had anything to do with the accident can be sued under what is called the theory of Strict Liability.  Lawyers call it the Stream of Commerce, because a manufactured product is like a log put into a fast-running river that crashes into things as it is swept downstream.  Anyone who is damaged by it, even a thousand miles downstream, has a claim against the person who put it into the water.  Once a defective product is sold to the public, there is no way of knowing who will use it or where it will end up.  So, the law says that everyone who had anything to do with putting it into the Stream of Commerce has a responsibility for whatever damage it does and can be sued by anybody who is injured by it.  Under today’s law, the Wisconsin parents would be able to sue the manufacturer, wholesaler, retailer of the wheelchair, and the hospital.

The following is a list of state time limits, or statutes of limitations, which has been abbreviated.  You can see what the statute is in your state; however, the laws do change, and there are important exceptions to the rules.  In some states, the courts allow different time limits than those set by law.  In the states that use the hybrid rule, the time limit is an absolute deadline, and your case must be dismissed, if you are even one day late.  In states that balance the equities, your lawyer may obtain an extension from the judge, but it is a needless risk that you should not run.

The Rule Is: Whether you live in a state that uses the hybrid rule or one that balances the equities, file your lawsuit early and avoid the deadline.  If there is any question about the time limit in your case, do not try to figure it out yourself - consult a lawyer.

State Statutes of Limitations in Medical Malpractice and Dental Malpractice:

Alabama – 2 years from injury or discovery; 4 years absolute limit. Minors under 4 years have until 8th birthday.
Alaska – 2 years from injury or discovery.  Two years + 1 day of a minor’s 18th birthday.
Arizona – 2 years from injury.  Statute tolled if claimant is under 18, mentally incompetent, or imprisoned.
Arkansas – 2 years from injury.  Minors under age 9 have until 11th birthday.
California – 3 years from injury or discovery; statute tolled by foreign object concealment.  Minors under 6 have until 8th birthday; outside limit 4 years.
Colorado – 2 years from discovery; other types of disability until 2 years after termination; statute tolled by concealment.  Minors under 6 have 2 years after 6th birthday.
Connecticut – 2 years from injury or discovery.  No extension for minors.
Delaware – 2 years from injury; 3 years from discovery; minors have until 6th birthday.
District of Columbia – 3 years from injury or discovery; limitation period begins to run on minor’s 18th birthday.
Florida – 2 years from injury or discovery; outside limit 4 years.  Limitations apply to minors aged 8 or older; child under 8 must file suit by 8th birthday or within limitations period outlined above, which ever time period is greater.
Georgia – 2 years from injury; 1 year from discovery of foreign object; no action may be brought more than 5 years after injury.  Minors have until 7th birthday; statute of repose cannot run before minor’s 10th birthday.
Hawaii – 2 years from injury or discovery; failure to disclose malpractice tolls the statute.  Absolute limit 6 years.
Idaho – 2 years from injury.  Statue begins to run upon a minor’s 18th birthday.
Illinois – 2 years from injury or discovery; if injury cannot be discovered during 2 year period, action must be filed within 4 years of injury; suits may be brought up to 8 years after injury but not after age 22.
Indiana – 2 years from injury.  Minors under 6 have until 8th birthday.
Iowa – 2 years from injury or discovery; 6 year absolute limit.  Also applies to minors 8 or older; minors under 8 have 2 years from date of injury or by 10th birthday, whichever is later.
Kansas – 2 years from injury or discovery; maximum of 4 years from occurrence.  Minors have until within 1 year of 18th birthday, but not more than 8 years after injury.
Kentucky – 1 year from injury; 5 year absolute limit.  For unmarried minors, statute begins to run on 18th birthday; for married minors, statute begins to run upon date of marriage.
Louisiana – 1 year from injury or discovery; 3 year absolute limit.  Concealment tolls statute.
Maine – 3 years after date of injury; action accrues on date when foreign object in body is discovered or should have been discovered.  Minors have 6 years after injury or within 3 years after minor reaches age of majority, whichever occurs first.
Maryland – 5 years from injury or 3 years from discovery of injury; 3 years from occurrence for death.  Minors under 16 have until 16th birthday.
Massachusetts – 3 years from injury or discovery; disability 3 years after removal; concealment tolls the statute until 3 years after discovery.  Minors under 6 have until 9th birthday.
Michigan – 2 years from date of injury, or within 6 months of discovery to a maximum of 6 years following injury.  Minors under 8 statute begins to run on 10th birthday, or within the 2 year statute of limitations, whichever is greater.  Minors under 13 with injuries to the reproductive system have until 15th birthday or within the 2 year statute of limitations, whichever is greater.
Minnesota – 4 years from injury or omission.  Minors must file within 1 year of 18th birthday but no more than 7 years after date of injury.
Mississippi – 2 years from injury, omission, or discovery; not more than 7 years after injury or omission.
Missouri – 2 years from injury or omission; not more than 10 years after date of the act.  Minors under 8 must file by 20th birthday.
Montana – 3 years from injury or discovery; absolute limit 5 years.
Nebraska – 2 years from injury or death; 1 year from discovery; 2 years from last treatment in failure to diagnose cancer; absolute limit 10 years.
Nevada – 3 years from injury, omission, or within 1 year of date of discovery, whichever is earlier; minors included.  Minors with brain damage or birth defects have until 10th birthday; minors whose injuries result in sterility have 2 years from date of discovery.
New Hampshire – 2 years from injury; 2 years from discovery of foreign object.
New Jersey – 2 years from injury, omission, or discovery.  Statute begins to run on a minor’s 18th birthday; minors with birth injuries must file by 13th birthday.
New Mexico – 3 years from injury or death; concealment tolls statute.  Minors under 6 have until 9th birthday.
New York – 30 months from injury or omission; 1 year from date foreign object was or should have been discovered.  Minors have 3 years from date of 18th birthday to commence action, but statute cannot be extended more than 10 years from date of injury or omission.
North Carolina – 3 years from injury or omission; 2 years from discovery to a maximum of 4 years; 2 years for wrongful death; 1 year for discovery of foreign object to a maximum of 10 years after date of injury.  Minors within 1 year of 18th birthday.
North Dakota – 2 years from injury or discovery; maximum of 6 years.  Disability of a minor may not extend statute by more than 12 years.
Ohio – Notice to defendant within 1 year of injury; action may be filed 180 days after notice; service of notice tolls statute by 180 days; 1 year for foreign object, but not more than 4 years after object discovered.  Minors have 4 years after injury.
Oklahoma – 2 years from injury or discovery; 2 years for death or newborn.  Minority and mental incompetence extend time limit, except for newborns.
Oregon – 2 years from injury; 3 years from death; absolute limit 5 years, except for  concealment.
Pennsylvania – 2 years from injury or death; concealment and disability toll statute.
Rhode Island – 3 years from injury.  Statute begins to run on minor’s 18th birthday.
South Carolina – 3 years from injury or discovery; 6 years for death; 2 years from discovery of foreign object or negligent placement of device; disability 2 years from discovery or 1 year from removal.
South Dakota – 2 years after injury or omission.  Minors under 6 have 2 years after 6th birthday to file; minors 6 and older must file within 3 years from injury or omission.
Tennessee – 1 year from date of injury or discovery; not more than 3 years after injury except for concealment; 1 year after discovery of concealment; 1 year for discovery of foreign object.  Statute begins to run on minor’s 18th birthday.
Texas – 2 years for injury or omission; not more than 10 years after that date.  Minors under 12 have until 14th birthday.
Utah – 2 years for injury or discovery; 1 year from date of insertion of foreign object left in body or discovery; not more than 4 years from date of injury or omission.  Statute runs on minor’s 18th birthday.
Vermont – 3 years for injury and discovery; 2 years from occurrence for death; concealment tolls statute; absolute limit 7 years; 20 years from last treatment for x-ray injuries.
Virginia – 2 years from injury or omission; 1 year for foreign object left or discovered, but not more than 10 years after insertion.  Minors under 8 have until 10th birthday.
Washington – 3 years for injury; 1 year after discovery.
West Virginia – 2 years for injury or death; concealment tolls the statute.
Wisconsin – 3 years from injury or death; 1 year from discovery; concealment tolls statute.  Minors have until age 10.
Wyoming – 2 years from injury, discovery, or death; disability tolls statute until 1 year after removal; court may grant extension if malpractice not discoverable with due diligence.  Minors have until 8th birthday.

The Rule Is: These state time limits, which are subject to change, are absolute deadlines.  After they run out, you cannot file your lawsuit for medical malpractice or dental malpractice.  If your case is near its time limit, consult a lawyer as soon as possible.

Other states use a system known as Balancing the Equities in deciding whether to grant an extension of the time limit.  It means that the judge can consider all the factors, which might have justified a delay over the time limit and decide whether Equity (fair play) entitles you to more time.  However, you must be prepared to show good reason why you are entitled to an extension, and it will usually be granted only if the delay was caused by something totally beyond your control.

These are specific forms of disability.  A doctor delivers a baby and causes a brain injury; he knows that he can be sued.  So, he alters the medical records, deletes references to what happened, and deliberately misleads the parents into thinking their child was brain damaged for some other reason.

You can understand the doctor’s feelings, even if you cannot sympathize with his actions.  It is a temptation to head off a major lawsuit that will cause his medical malpractice insurance premiums to skyrocket, just by making a few judicious entries in the medical records and some soothing statements to the parents.  Or, a doctor sews up an instrument inside a patient and when asked about it lies and says that all the instruments were accounted for, hoping to string the patient along until the time limit for a medical malpractice lawsuit has run out.

These actions would toll the statute of limitations until the concealment or deceit is discovered.  However, the doctor has to do more than just keep quiet and not volunteer any information.  No doctor is going to come right out and tell you that he committed medical malpractice.

You have to show there was active and deliberate concealment or deceit by the doctor or the hospital, and that it was designed to keep you from learning you had been the victim of malpractice.  Failure to tell you, or giving you an explanation that makes him look good, is not sufficient reason to sue.  The doctor has to actually try to mislead or deceive you by altering medical records, lying about what happened, or otherwise falsifying the information you receive.

Foreign Object

This means that some foreign object, a sponge or surgical instrument, was closed up inside your body without you knowing it.  The clock does not start running until you detect it or should have detected it.  For example, a surgical clamp or needle can stay inside your body for years without causing any trouble that would alert you to the fact it is there.  A broken surgical needle can migrate around your chest or abdomen for years and cause strange symptoms without the victim realizing what is causing them.  On the other hand, a gauze sponge in your abdomen, or dye injected into your spinal column, will probably cause a lot of trouble almost immediately.

In a New Hampshire case, the doctors committed medical malpractice by failing to deliver the entire placenta after the birth of a baby.  That resulted in the patient having to undergo a hysterectomy.  The doctors committed further malpractice by sewing up a gauze sponge inside the patient.  The sponge caused serious infections over the next two or three years, but the same doctors, still treating her, either did not know or did not tell her what it was.  She finally became so ill that she went to a hospital in Boston where the sponge was found and removed.  But, by that time, it was too late, and she died leaving three orphans.

When her family filed a lawsuit, the doctors’ lawyers claimed the case was over the time limit, because the deceased lady and her family should have known something was wrong much earlier.  But, the court held that her confidence in her doctors meant that the statute of limitations was tolled until the sponge was discovered and removed in Boston.  If the doctors had advised doing an exploratory operation to find the cause of the trouble, and she had ignored that advice for more than two years, it might have been a different story.

The Rule Is: No patient can be criticized for continuing to have blind faith in a doctor even though he or she may have serious doubts about the doctor’s competence or performance.  It is not a defense to a charge of medical malpractice, to say the patient should have suspected something was wrong and consulted another doctor.  The doctor is the expert; it is his or her duty to refer the patient to another doctor, if referral is indicated.

In some states you can.  The clock does not start until after the last treatment for the same or a related condition.  Continuing treatments for the same sinus trouble would stop the clock, so would respiratory trouble or ear disease, if they were complications of the sinus trouble.  But, treatment for a sprained ankle or a stomach complaint would not do it, because they are not related to the sinus disease.

Some people use this law to bring a medical malpractice case to life, long after the time limit has run out.  When they find out too late the doctor has done something wrong, they go back and ask for another treatment.  That can automatically start the clock running again.

In a Michigan case, a man had over 200 hair transplants for baldness.  He liked them at first but later decided he did not like them.  As time went on, he became more and more dissatisfied and finally decided to sue the dermatologist for medical malpractice.  However, the two-year time limit had run out, so his lawyer told him to go back to the doctor and get just one transplant to cover a small bare spot.  The unsuspecting dermatologist did it, and the very next day, the man’s lawyer filed a medical malpractice lawsuit for everything that had been done years before.  The single treatment started the clock again.

Disability

This means legal disability, not physical disability.  It includes minors, mental incompetents, persons in a coma, or persons who are physically prevented from exercising their legal rights, such as military personnel serving abroad or people in jail.  Anyone who is prevented from exercising his or her legal rights for good reason is considered legally disabled and the Statute is Tolled (the clock is stopped) until the legal disability is removed.  Most states do not start counting until the disabled person, or a legal guardian, is able to assert their legal rights.

If a child is injured, the clock may not start running until the child reaches age 10 or even full adulthood.  Other examples of tolling the statute are: if a person is temporarily, mentally incompetent because of an overdose of drugs given by a doctor and is spaced out for a long time, or if a person is confined in a mental institution.  It may not start until after the person is released and has become mentally competent again.  Some states even extend the time limit for people in prison.  A person in prison is usually not in a position to do anything about it until after they are released.  Fundamental fairness requires an extension.

Date of the Occurrence

This is the date the malpractice actually occurred. You were the victim of medical malpractice during surgery or in the emergency department of a hospital. There is no difficulty in determining the Date of the Occurrence. On the other hand, if your mother went to a doctor complaining of a lump in her breast, and he saw her several times over a period of a year but failed to do a diagnostic work-up that would have revealed cancer, the date of the occurrence could be difficult to determine. Or, if you had a series of spinal manipulations for a bad back, you cannot be sure which one caused your fractured vertebrae.

Date of Discovery

Often, it is difficult to determine precisely when malpractice and injury occurred. In some cases, it is not even discovered until after the time limit, counting from the date of the occurrence, has run out. Therefore, most states use another measure called the Date of Discovery. This is the date on which a reasonable person should have discovered that he or she was the victim of malpractice.

In most medical malpractice or dental malpractice cases, the victims do not realize they have been the victims of malpractice for a long time. They tend to think their complaints are normal and usual complications of their disease or treatment. In fact, it is estimated that almost 90% of malpractice victims do not file suit, because they never realize their injuries are due to someone’s negligence.

A Georgia man suffered a serious back injury while working on a construction site. The emergency room doctors were surprised to see a surgical clamp on the x-rays. When the doctors questioned the patient, he told them he had had stomach surgery in Delaware 20 years earlier. He also told them he had suffered from chronic stomach trouble ever since, but it had not been bad enough for him to consult a doctor. He discovered the malpractice, and the clock started running when the doctor in Georgia told him about the instrument left in his abdomen. He sued and won.

Let us assume the man in Georgia had had so much discomfort from the clamp in his abdomen, that he had gone to another doctor a year later, and that doctor said, “I don’t know why you are still having stomach trouble. Let’s take an x-ray.” But, the patient had ignored the doctor’s advice and did not do anything until later. The court would have said that he should reasonably have discovered it sooner when it would have shown up on an x-ray and failure to do so was his own fault. His complaint would be thrown out, because it was way over the time limit.

At the other extreme, a Pennsylvania woman tried to sue a plastic surgeon for medical malpractice one week after the statute of  limitations had run, because she decided that she did not like the rhinoplasty he had done. The court ruled there was no valid excuse for not having moved sooner. She had been looking at her nose every day since her surgery and had ample opportunity to make up her mind. Her case was barred.

The legal term for this is Laches, and it means that if you sit on your legal rights for a long time and do not move to enforce them, you lose them. Once you have reason to suspect medical malpractice or dental malpractice, you must move, if only to find out whether your suspicions are correct.