Statute of Limitations on Medical Malpractice Claims

Have you been given wrong prescription? Or diagnosed with a wrong illness? Or underwent operation but the surgical procedure gone badly?

These incidents are commonly known as medical malpractice.

Patients who are victims of malpractice are not left without recourse. Of course, they can validly file a complaint for damages on the injuries sustained.

The question now is what the prescriptive period for filing claims for damages is. Under the California law, a medical malpractice suit must be brought “within one year from the date the claimant discovered the negligent act, but no more than three years from the date of injury.” When the action is brought by or on behalf of minors, must be filed “within three years from the date of the negligent act, unless the child is under the age of six, in which case the action must be commenced within three years or prior to the child's eighth birthday, whichever provides the longer time period.”

From the reading of law, it seems to me that the prescriptive period for actions filed by adults and that of a minor is different. The statute of limitations commences to run for adults at the time of discovery but for minors at the time of the negligent act. I just can’t help but wonder why the law made such a distinction. Or is there really a distinction?

Yes, I am aware that the law can be harsh at times. But what I’m trying to point is that, are we not entitled to the same protection provided by law? In other words, this situation calls for the application of the “equal protection of law” principle.

To illustrate, if a minor was operated on say in 2003 however the devastating effects manifested only in 2007, such minor shall be barred from enforcing a claim because he is barred by statute of limitation. However if it is an adult, since the discovery was in 2007, he has until 2010 to pursue his claims.

It’s time to look at this matter. The California Supreme Court has yet to rule on this anomaly.