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.

What Makes a Product Defective?

We regularly hear stories of defective product victims. Maybe we can add up some friends or relatives in the list, or maybe, even ourselves. In some of these cases, we often hear victims being injured as a result of these defects.

Reading the article, “Products Liability in California: What You Should Know”, posted in July 10, 2007, one can learn certain facts about the liability of manufacturers in regard to defective products and the harm it may cause to consumers.

According to the article, manufacturers can be held liable for defects under the product liability law, which is a strict liability. By that, it means that you do not have to show the negligence of the manufacturer to recover damages for injuries due to a defective product.

But what really makes a product defective?

A product may be considered defective as a result of the following errors:

• Design defects – These are errors in design. Oftentimes, manufacturers address the issue by making a recall of the product from the market.
• Defective Manufacturing - These flaws result from mistakes or problems that take place during the actual production phase, and they may only affect a few specific items out of many properly working, safe products.
• Inadequate Testing – This occurs when products have not been tested or examined adequately. As a result, some defects go unnoticed and may cause future injuries to consumers.
• Marketing Misrepresentation - This can include everything from confusing, hard-to-follow instructions to incomplete warning labels, such as those on prescription drugs. Instructions and labels must be in simple, understandable language.

In some cases, defective products can also result into serious injuries and even death. Take the examples of defects in SUVs, the asbestos cases, medical malpractice cases, etc.

Injuries and harm caused by defective products may be recovered by going after the manufacturers and distributor of the said flawed items. In pursuing a claim for an injury for these cases, you will need the help of an expert witness to support your case.

In short, if you have been injured as a result of a product defect, you need to contact a product liability attorney in your area and inform him of the circumstances of your injury.

The Elements in Neglect of Minors Tort Cases

Can parents be held liable for the behavior of their teenager child? Yes. Although the general rule is that parents are not ‘vicariously liable’ for the torts of their children, many states impose parental liability which is intertwined by law in the torts of minors.

I just come across this article, “Tort of Negligent Supervision of Minors”, posted on May 5, 2006, which discusses the legal element of the tort of negligent supervision of minors.

In this case, the law applies to parents in the state of Kentucky. It seems interesting to note that there is a law that penalizes negligent parents who fail to take care of their children or does not show concern for their welfare. According to the statute: “"A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them”.

One of the most important provisions of the law states that parents can be held accountable for their children under the following conditions:

• If the parent knows or has reason to know that he has the ability to control his child
• If a parent knows or should know of the necessity and opportunity for exercising such control.

The article was based on a decision made by the state Supreme Court in Hugenberg v. West American Insurance Company, NO. 2004-CA-001472-MR (April 7, 2006). The case stemmed from a complaint filed against a family member, notably the teenage son, whose drinking habits have become unbearable. The complainant faulted the parents for the child’s alcohol abuse which apparently led them to sue the elders for negligent supervision of minors.

However, according to the court, the following may not be considered negligent supervision:

• If parents are not aware of, and have no reason to be aware of any particular risk which calls for such intensive monitoring.
• Parents have no duty to third parties to supervise or control their minor child to prevent the child from harming others unless the parents know but did not exercise control over the child
• The mere inability to exercise control is not, in and of itself, proof that the parents violated a duty to control their child to prevent him from harming others.

I believe it is high time that more laws on parental care and guidance must be created.

Yet I am sure laws of similar nature have been specially created to promote responsible parenthood in other states. And I believe laws which protect us from all injuries arising from negligence, not only from neglecting our own children, must be implemented to serve its proper purpose.

If you have been injured or harmed due of another person’s carelessness or lack of concern, it is best to consult a lawyer who is knowledgeable in general negligence issues.