Minor children and incompetents in medical malpractice

If at the time of the actual malpractice (or discovery of the malpractice or termination of the physician-patient relationship) the victim is a minor (under eighteen), all applicable statutes of limitations are “tolled” (paused) until the minor reaches the age of eighteen.  This essentially means that the one year medical malpractice statute of limitations does not begin to run until the minor victim’s eighteenth birthday.  As such, the victim will have one year from his or her eighteenth birthday in which to file a lawsuit or successfully serve a 180-day letter (discussed above).

For example, say that your 16-year-old child becomes the unfortunate victim of medical malpractice when the doctor negligently repairs your child’s broken arm.  Because your child was under the age of eighteen at the time of the malpractice, the statute of limitations is tolled (paused) until your child reaches his or her eighteenth birthday.  It is on the date of the eighteenth birthday that your child reaches the “age of the majority,” and he or she will then have one year from that date in which to file a medical malpractice lawsuit against the doctor who negligently repaired the broken arm (or successfully serve a 180-day letter).

If at the time of the actual malpractice (or discovery of the malpractice or termination of the physician-patient relationship) the victim is legally incompetent, all applicable statutes of limitations are “tolled” (paused) until the victim becomes competent again.  This essentially means that the one year medical malpractice statute of limitations does not begin to run until the date that the incompetent victim is restored to competence.  As such, the victim will have one year from the date that he or she is restored to competence in which to file a lawsuit (or successfully serve a 180-day letter as discussed above).

If a malpractice victim was competent at the time of the malpractice (or discovery of the malpractice or termination of the physician-patient relationship), but later becomes incompetent within the one year limitations period, the limitations period is tolled (paused) at that time until the victim is restored to competence.  Once the victim is restored to competence, the statute will begin running again right where it left off.

For example, let’s say that a 30-year-old man becomes the unfortunate victim of medical malpractice on January 1, 2012.  He is then declared legally incompetent six months later on July 1, 2012.  In this situation, the one year limitations period is tolled (paused) on July 1, 2012, until the man’s competence is restored.  If competence is restored on January 1, 2013, the one year statute of limitations will start running again on that date, and the man will have until July 1, 2013 to file a lawsuit.

Finally, the Ohio “statute of repose” requires that any medical malpractice claim must be brought within four years of the malpractice, except that a claimant has one full year from discovery (even if this exceeds four years) for claims discovered after three years, or for claims based on a foreign object being left in the body.

In summary, calculating the proper statute of limitations can be complicated, and an error can result in serious and irreversible consequences.  That is why it is so important to promptly consult a knowledgeable medical malpractice attorney at the first moment that you suspect that you or a loved one has been the victim of medical malpractice.

State Run Hospitals

Although the state of Ohio is generally immune from lawsuits, the state has waived its immunity for lawsuits against hospitals owned or operated by “political subdivisions” (i.e. state or county-owned hospitals).  However, although these state facilities can be sued, they can only be sued in the Ohio Court of Claims.  The Ohio Court of Claims is a court of limited jurisdiction which hears cases where the state has waived its immunity.  This is somewhat advantageous for the defendant medical providers because Ohio Court of Claims cases are tried in Columbus before a judge, not a jury.

Although the law provides that claims against the state are generally subject to a two year statute of limitations, the law also provides that there is an exception if there is a shorter statute of limitations applicable in “similar suits between private parties.”  Because a similar suit between private parties (i.e. a private patient and a private hospital) would be subject to the one year statute of limitations discussed above, our firm has taken the stance that we file all medical malpractice lawsuits within the one year statute of limitations (unless we choose the 180-day letter route).  This is true even if the defendant is a state run hospital.  You should also note that political subdivisions are completely immune from liability for punitive damages.

Call 800.637.8170 to request a free copy of The Ohio Medical Malpractice Book and set up a free consultation with one of our Toledo, Ohio medical malpractice lawyers.