Comments

What’s on Their Minds: Constitutional Challenge to the Medical Malpractice Statute of Repose. When Does an Undiscovered Claim Vest? Tracy Ruther, Individually and Administrator of the Estate of Timothy Ruther v. George Kaiser, D.O., et al. — 1 Comment

  1. Excellent analysis. If it is indeed correct that a statute of repose “can never work” in a medical claim, it is because it should not, and cannot, without divesting someone of a right that has never accrued because of the absence of knowledge of the claim’s existence through no fault of the plaintiff. A statute of repose in a product claim is an entirely different “animal” since it is more in the nature of a “limited warranty”. The closest analogy would be if a stomach stapling procedure was performed properly, and held up for 5 years and then deteriorated. But there, negligence would not lie in any event. The difference is product liability is not necessarily premised on negligence.

    An even stickier wicket is presented by the case of misdiagnosis of a tumor that has less than an even chance of recurrence: does the statute begin to run upon discovery of the misdiagnosis, even in the absence of any “injury” (which is a legal prerequisite to the accrual of a cause of action)? The Court has already deemed a “risk” of harm is not sufficient to state a cause of action. What if recurrence does eventually occur outside of four years? These are part of the conundrum created when special rules are created for special classes of cases, in an effort to advance a “public policy agenda”.