All states have Statutes of Limitations, which restrict the time period in which a person can bring a lawsuit. Each state’s statutory time limits vary by type of action (e.g., personal injury, wrongful death, breach of contract, etc.). The basis for these laws is that over time, memories fade and evidence is lost, making it more difficult to defend a lawsuit. A plaintiff’s failure to file a suit within the prescribed time period is a potential defense to a claim. The defendant must move to dismiss the suit on the grounds it is time-barred.
The critical issue is determining the date upon which the right to bring a suit first arises; the technical term used in Statutes of Limitation is the date when the right has “accrued.” In general, the right “accrues” on the date the negligent act or omission that led to the harm occurs.
In New Jersey, the statute of limitation for a medical malpractice action, like other personal injury actions, is two years from the date the cause of action “accrued” (N.J.S.A. 2A:14-2). However, the New Jersey courts have read a “discovery rule” into this statute to mitigate the harshness of the statute. This means that the right to bring suit does not “accrue” and the clock doesn’t begin running until the plaintiff discovers or, in the exercise of due diligence, should have discovered, that the negligence occurred (Martinez v. Cooper Hospital-University Medical Center, 163 N.J. 45, 747 A 2d 266, N.L. 2000).
In some medical malpractice scenarios, it can be easy to determine when the injury occurred. For example, the patient awakes from surgery to discover that the wrong procedure was performed. However, sometimes the alleged underlying negligence or injury is not immediately apparent. For example, the patient may not discover the presence of a retained foreign body until some time, even years, after surgery. In New Jersey, a “discovery rule” jurisdiction, the statute of limitations doesn’t begin to run until the retained foreign body is discovered.
Accordingly, New Jersey courts have held that a cause of action does not accrue as long as a party reasonably is unaware that he has been injured, or that the injury is due to the fault of an identifiable person (Savage v. Old Bridge-Sayreville Medical Group, 260 N.S. Super. 417, 616 A. 2d 1307. [App. Div. 1992]). However, plaintiffs cannot invoke the “discovery rule” just because they do not know the identity of the person who caused the injury; the cause of action “accrues” when the claimant is aware of facts that would lead a reasonable person to conclude that the injury was attributable to the fault of another (Viviano v. CBS, Inc., 101 N.J. 538, 546-47 [1986]; Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 274 [App.Div.1997]).
New Jersey’s statute makes exceptions for plaintiffs who are harmed as legal minors (not yet 18 years old) and for incompetent persons (lacking capacity to sue), extending the time until the legal disability is removed (N.S.S.A. 2A:14-21).
In 2004, the New Jersey Legislature amended the statute of limitations for personal injury actions, as follows:
Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within 2 years next after the cause of any such action shall have accrued; except that an action by or on behalf of a minor that has accrued for medical malpractice for injuries sustained at birth shall be commenced prior to the minor’s 13th birthday. N.J.S.A. 2A:14-2
When this amendment was enacted, some had thought that the Legislature intended to provide some relief to potential defendants, by reducing the time period for minors, at least those alleging birth related injury, to bring claims. As it applies to births occurring on or after July 7, 2004, it is too soon to know with certainty how this provision will ultimately be interpreted since the courts have not yet ruled on any cases under the “birth injury” amendment.
Recommendations:
- Physicians should not assume that, just because no claims have been brought against them within two years of an event, that they are “safe.” They need to understand the legal impact of the “discovery rule” and “accrual” of a cause of action under New Jersey’s Statute of Limitations.
- Physicians who treat minors should recognize that many years can pass between the discovery of an injury and the date by which the minor must file a suit for alleged negligence. They need to take care to preserve all records (including office or other ambulatory settings, as well as hospital) for those patients for an appropriate length of time.
- Because there can the extended time between an alleged birth injury and a claim being filed, memory of details of a case cannot be relied on. Physicians need to recognize that documentation will be a critical component of their defense in a suit for medical malpractice; it can either help or hurt, depending on the quality and completeness.