Law & Medicine

Question: Mary visited her twin sister, Cecilia, in the hospital where she had recently undergone brain surgery. During the visit and in full view of Mary, Cecilia developed status epilepticus after a nurse erroneously gave her Dilaudid instead of Dilantin. Mary was petrified by the incident and developed insomnia, nightmares, and depression, which required psychiatric treatment. Which of the following choices is best?

A. Mary can sue for negligent infliction of emotional distress.

B. Mary can sue irrespective of whether she is a close family member.

C. Mary can sue even if she had learned of the events via telephone, so long as she can prove she suffered diagnosable mental distress as a result.

D. A and B are correct.

E. All are correct.

Answer: A. Negligent infliction of emotional distress (NIED) is a tort in which the plaintiff, usually a bystander, develops significant emotional distress after observing shocking injuries to a primary victim. For a NIED lawsuit to be successful, courts insist that the bystander-claimant meet rather strict criteria, which include being a close relative and having directly observed the injuries contemporaneously with the tortious conduct. New York, for example, permits only spouses and immediate family members to sue.

At common law, there was no recovery for NIED, the rationale being that psychiatric complaints are often minor and transient, and symptoms are susceptible to falsification or magnification. Furthermore, it was feared that such recovery will open the floodgates to litigation, with claims being filed by assorted victims for alleged mental distress brought about by property damage and work stress.

However, over the past 50 years, NIED has emerged as a specific compensable tort. Bystanders, so-called “secondary victims,” can file lawsuits when they suffer mental harm as a result of having observed the primary victim’s injuries, but who were themselves not the direct object of the tortfeasor’s negligence.

Courts may require the plaintiff to sustain some physical injury in addition to mental anguish, to have experienced an “impact,” or to be in the “zone of danger.” These limitations have sometimes proved awkward in practice. For example, Georgia was once asked to decide whether the requirement of impact was satisfied where a circus horse evacuated his bowels onto the plaintiff’s lap. (It answered in the affirmative!) The impact rule has since been abandoned in most jurisdictions, although Illinois continues to require the plaintiff to establish a concomitant physical injury or impact in malpractice cases. It also has ruled that expert testimony was unnecessary to prove the element of emotional distress where an obstetrician allegedly did not arrive for more than an hour and the baby died with its head stuck in the birth canal.

Many jurisdictions have adopted a variant of the so-called California or Dillon test, which focuses on bystander foreseeability and satisfying three “proximities”: 1) physical proximity, that is, the bystander is located at the scene; 2) temporal proximity, that is, personally observes the accident; and 3) relational proximity, denoting the bystander’s close relationship to the primary victim. These criteria stemmed from the seminal California decision of Dillon v. Legg, where a mother witnessed the tragic death of her infant daughter at the scene of a traffic accident, and then experienced severe emotional distress thereafter. At no time did the mother sustain an impact, nor was she in any zone of danger. California has subsequently imposed the additional requirement that the claimant must be contemporaneously present at the event scene and aware of the resulting harm.

NIED is best understood as a duty inquiry, that is, when the tortfeasor owes a duty to someone other than the primary injured victim. Absent a finding of duty, the plaintiff’s cause of action will fail. This explains the court’s findings in a malpractice case where a mother was successful in her suit against an obstetrician after her baby sustained anoxic encephalopathy during delivery. The court chose to characterize her as a direct victim rather than a bystander, to whom a duty of care was already owed as part of the doctor-patient relationship. This nullified the defendant’s argument that she did not contemporaneously observe the baby’s injury, a requisite element under California law.

In the medical setting, whether a duty exists is also linked to the relationship of the bystander to the patient. This became an issue in a New Jersey case of negligent medical care and wrongful death. The patient died of complicating infections after a long hospital stay. The plaintiff, engaged but unmarried to the decedent, advanced a bystander claim for NIED, asserting that he shared an intimate familial relationship. The court ruled against him, holding that his relationship with the decedent patient failed to meet the “marital or intimate familial relationship” requirement. Furthermore, for liability, the plaintiff must have contemporaneously observed the act of malpractice and its fatal effect on the patient, which the court decided he did not. The court referenced its earlier holding that a misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite for recovery.

On the other hand, a Rhode Island plaintiff was able to proceed with her claim for NIED after a defendant hotel negligently delayed 14 minutes before calling an ambulance for her husband who had sustained and subsequently died from a heart attack. The court held that, unlike a medical malpractice claim, the plaintiff was not required to know at the time that the defendant had failed to summon an ambulance.

In Commonwealth countries, the tort of NIED is referred to as nervous shock. As in the United States, the claimant has to be a close relative who is involved in the immediate aftermath of a horrifying event, and sustains foreseeable psychological harm leading to a well-defined psychiatric illness.

This column, “Law & Medicine,” appears regularly in Internal Medicine News, a publication of Elsevier. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (Hackensack, N.J.; World Scientific Publishing Company, 2006). For additional information, readers may contact the author at [email protected].

Question: Mary visited her twin sister, Cecilia, in the hospital where she had recently undergone brain surgery. During the visit and in full view of Mary, Cecilia developed status epilepticus after a nurse erroneously gave her Dilaudid instead of Dilantin. Mary was petrified by the incident and developed insomnia, nightmares, and depression, which required psychiatric treatment. Which of the following choices is best?

A. Mary can sue for negligent infliction of emotional distress.

B. Mary can sue irrespective of whether she is a close family member.

C. Mary can sue even if she had learned of the events via telephone, so long as she can prove she suffered diagnosable mental distress as a result.

D. A and B are correct.

E. All are correct.

Answer: A. Negligent infliction of emotional distress (NIED) is a tort in which the plaintiff, usually a bystander, develops significant emotional distress after observing shocking injuries to a primary victim. For a NIED lawsuit to be successful, courts insist that the bystander-claimant meet rather strict criteria, which include being a close relative and having directly observed the injuries contemporaneously with the tortious conduct. New York, for example, permits only spouses and immediate family members to sue.

At common law, there was no recovery for NIED, the rationale being that psychiatric complaints are often minor and transient, and symptoms are susceptible to falsification or magnification. Furthermore, it was feared that such recovery will open the floodgates to litigation, with claims being filed by assorted victims for alleged mental distress brought about by property damage and work stress.

However, over the past 50 years, NIED has emerged as a specific compensable tort. Bystanders, so-called “secondary victims,” can file lawsuits when they suffer mental harm as a result of having observed the primary victim’s injuries, but who were themselves not the direct object of the tortfeasor’s negligence.

Courts may require the plaintiff to sustain some physical injury in addition to mental anguish, to have experienced an “impact,” or to be in the “zone of danger.” These limitations have sometimes proved awkward in practice. For example, Georgia was once asked to decide whether the requirement of impact was satisfied where a circus horse evacuated his bowels onto the plaintiff’s lap. (It answered in the affirmative!) The impact rule has since been abandoned in most jurisdictions, although Illinois continues to require the plaintiff to establish a concomitant physical injury or impact in malpractice cases. It also has ruled that expert testimony was unnecessary to prove the element of emotional distress where an obstetrician allegedly did not arrive for more than an hour and the baby died with its head stuck in the birth canal.

Many jurisdictions have adopted a variant of the so-called California or Dillon test, which focuses on bystander foreseeability and satisfying three “proximities”: 1) physical proximity, that is, the bystander is located at the scene; 2) temporal proximity, that is, personally observes the accident; and 3) relational proximity, denoting the bystander’s close relationship to the primary victim. These criteria stemmed from the seminal California decision of Dillon v. Legg, where a mother witnessed the tragic death of her infant daughter at the scene of a traffic accident, and then experienced severe emotional distress thereafter. At no time did the mother sustain an impact, nor was she in any zone of danger. California has subsequently imposed the additional requirement that the claimant must be contemporaneously present at the event scene and aware of the resulting harm.

NIED is best understood as a duty inquiry, that is, when the tortfeasor owes a duty to someone other than the primary injured victim. Absent a finding of duty, the plaintiff’s cause of action will fail. This explains the court’s findings in a malpractice case where a mother was successful in her suit against an obstetrician after her baby sustained anoxic encephalopathy during delivery. The court chose to characterize her as a direct victim rather than a bystander, to whom a duty of care was already owed as part of the doctor-patient relationship. This nullified the defendant’s argument that she did not contemporaneously observe the baby’s injury, a requisite element under California law.

In the medical setting, whether a duty exists is also linked to the relationship of the bystander to the patient. This became an issue in a New Jersey case of negligent medical care and wrongful death. The patient died of complicating infections after a long hospital stay. The plaintiff, engaged but unmarried to the decedent, advanced a bystander claim for NIED, asserting that he shared an intimate familial relationship. The court ruled against him, holding that his relationship with the decedent patient failed to meet the “marital or intimate familial relationship” requirement. Furthermore, for liability, the plaintiff must have contemporaneously observed the act of malpractice and its fatal effect on the patient, which the court decided he did not. The court referenced its earlier holding that a misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite for recovery.

On the other hand, a Rhode Island plaintiff was able to proceed with her claim for NIED after a defendant hotel negligently delayed 14 minutes before calling an ambulance for her husband who had sustained and subsequently died from a heart attack. The court held that, unlike a medical malpractice claim, the plaintiff was not required to know at the time that the defendant had failed to summon an ambulance.

In Commonwealth countries, the tort of NIED is referred to as nervous shock. As in the United States, the claimant has to be a close relative who is involved in the immediate aftermath of a horrifying event, and sustains foreseeable psychological harm leading to a well-defined psychiatric illness.

This column, “Law & Medicine,” appears regularly in Internal Medicine News, a publication of Elsevier. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (Hackensack, N.J.; World Scientific Publishing Company, 2006). For additional information, readers may contact the author at [email protected].

Question: Mary visited her twin sister, Cecilia, in the hospital where she had recently undergone brain surgery. During the visit and in full view of Mary, Cecilia developed status epilepticus after a nurse erroneously gave her Dilaudid instead of Dilantin. Mary was petrified by the incident and developed insomnia, nightmares, and depression, which required psychiatric treatment. Which of the following choices is best?

A. Mary can sue for negligent infliction of emotional distress.

B. Mary can sue irrespective of whether she is a close family member.

C. Mary can sue even if she had learned of the events via telephone, so long as she can prove she suffered diagnosable mental distress as a result.

D. A and B are correct.

E. All are correct.

Answer: A. Negligent infliction of emotional distress (NIED) is a tort in which the plaintiff, usually a bystander, develops significant emotional distress after observing shocking injuries to a primary victim. For a NIED lawsuit to be successful, courts insist that the bystander-claimant meet rather strict criteria, which include being a close relative and having directly observed the injuries contemporaneously with the tortious conduct. New York, for example, permits only spouses and immediate family members to sue.

At common law, there was no recovery for NIED, the rationale being that psychiatric complaints are often minor and transient, and symptoms are susceptible to falsification or magnification. Furthermore, it was feared that such recovery will open the floodgates to litigation, with claims being filed by assorted victims for alleged mental distress brought about by property damage and work stress.

However, over the past 50 years, NIED has emerged as a specific compensable tort. Bystanders, so-called “secondary victims,” can file lawsuits when they suffer mental harm as a result of having observed the primary victim’s injuries, but who were themselves not the direct object of the tortfeasor’s negligence.

Courts may require the plaintiff to sustain some physical injury in addition to mental anguish, to have experienced an “impact,” or to be in the “zone of danger.” These limitations have sometimes proved awkward in practice. For example, Georgia was once asked to decide whether the requirement of impact was satisfied where a circus horse evacuated his bowels onto the plaintiff’s lap. (It answered in the affirmative!) The impact rule has since been abandoned in most jurisdictions, although Illinois continues to require the plaintiff to establish a concomitant physical injury or impact in malpractice cases. It also has ruled that expert testimony was unnecessary to prove the element of emotional distress where an obstetrician allegedly did not arrive for more than an hour and the baby died with its head stuck in the birth canal.

Many jurisdictions have adopted a variant of the so-called California or Dillon test, which focuses on bystander foreseeability and satisfying three “proximities”: 1) physical proximity, that is, the bystander is located at the scene; 2) temporal proximity, that is, personally observes the accident; and 3) relational proximity, denoting the bystander’s close relationship to the primary victim. These criteria stemmed from the seminal California decision of Dillon v. Legg, where a mother witnessed the tragic death of her infant daughter at the scene of a traffic accident, and then experienced severe emotional distress thereafter. At no time did the mother sustain an impact, nor was she in any zone of danger. California has subsequently imposed the additional requirement that the claimant must be contemporaneously present at the event scene and aware of the resulting harm.

NIED is best understood as a duty inquiry, that is, when the tortfeasor owes a duty to someone other than the primary injured victim. Absent a finding of duty, the plaintiff’s cause of action will fail. This explains the court’s findings in a malpractice case where a mother was successful in her suit against an obstetrician after her baby sustained anoxic encephalopathy during delivery. The court chose to characterize her as a direct victim rather than a bystander, to whom a duty of care was already owed as part of the doctor-patient relationship. This nullified the defendant’s argument that she did not contemporaneously observe the baby’s injury, a requisite element under California law.

In the medical setting, whether a duty exists is also linked to the relationship of the bystander to the patient. This became an issue in a New Jersey case of negligent medical care and wrongful death. The patient died of complicating infections after a long hospital stay. The plaintiff, engaged but unmarried to the decedent, advanced a bystander claim for NIED, asserting that he shared an intimate familial relationship. The court ruled against him, holding that his relationship with the decedent patient failed to meet the “marital or intimate familial relationship” requirement. Furthermore, for liability, the plaintiff must have contemporaneously observed the act of malpractice and its fatal effect on the patient, which the court decided he did not. The court referenced its earlier holding that a misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite for recovery.

On the other hand, a Rhode Island plaintiff was able to proceed with her claim for NIED after a defendant hotel negligently delayed 14 minutes before calling an ambulance for her husband who had sustained and subsequently died from a heart attack. The court held that, unlike a medical malpractice claim, the plaintiff was not required to know at the time that the defendant had failed to summon an ambulance.

In Commonwealth countries, the tort of NIED is referred to as nervous shock. As in the United States, the claimant has to be a close relative who is involved in the immediate aftermath of a horrifying event, and sustains foreseeable psychological harm leading to a well-defined psychiatric illness.

This column, “Law & Medicine,” appears regularly in Internal Medicine News, a publication of Elsevier. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (Hackensack, N.J.; World Scientific Publishing Company, 2006). For additional information, readers may contact the author at [email protected].

Question: Following a negligently performed tubal ligation, a 45-year-old multiparous woman subsequently became pregnant and delivered her fifth child, who was born healthy. Which of the following choices is best?

A. Both mother and child can sue for damages.

B. Mother can sue doctor for negligent tubal ligation and wrongful birth.

C. Child, even if perfectly healthy, can sue for wrongful life.

D. Child will most likely prevail if he was born with birth disabilities.

E. Life, even if imperfect, is always better than nonlife, so nobody will be successful in any lawsuit.

Answer: B. Negligently performed sterilization procedures such as vasectomy or tubal ligation can form the basis for a malpractice lawsuit. Should the parents file a claim, the lawsuit is confusingly termed wrongful birth (or better, wrongful pregnancy).

The law has traditionally barred a wrongful life action. The prime reason given is that life, even if imperfect, is always preferable to nonlife. Besides, it would be impossible to assess the quantum of damages since it would necessarily require placing a monetary worth on human existence. The seminal case is the 1967 New Jersey decision in Gleitman v. Cosgrove. The mother had contracted rubella during early pregnancy and the doctor had wrongly assured her that no harm would come to the fetus. As a result, she did not seek to terminate her pregnancy. In rejecting the child’s wrongful life claim, the court asserted that the "infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination." Concerned that it would otherwise be viewed as advocating abortion, the court also denied the mother’s separate claim for wrongful birth, choosing instead to focus on the "unmeasurable, and complex human benefits of motherhood and fatherhood."

New Jersey’s position has since changed, and in Berman v. Allan, it allowed damages for maternal emotional distress though not for medical and other expenses of raising the child. The court, however, continued to reject the infant’s claim for wrongful life. But in 1984, it allowed such a claim under very special circumstances. The infant was born with multiple congenital abnormalities (blindness, deafness, and mental retardation) after the physician had failed to diagnose rubella in the mother. By the time the case was brought, the statute of limitations had lapsed, barring the parents from filing an action. The court held that "a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority."

It was once argued that the defendant doctor owes no duty where his/her tortious acts or omissions had resulted in the birth of a healthy if unplanned child, since the benefits to the parents of having a healthy child outweigh any detriments. This line of reasoning has gradually eroded, and parents can now recover damages for pecuniary losses and even emotional distress for wrongful birth. The damages cover the physical, emotional, and financial costs of pregnancy and delivery, but not the costs associated with the normal rearing of a healthy child. In exceptional cases, courts have awarded limited damages to the parents for some child-rearing costs (for example, where the child is physically or mentally handicapped).

However, the legal situation is quite different for the infant. In the case of a failed sterilization or abortion procedure, for example, only the parents – not the infant – will have redress at law. Courts continue to refuse claims brought by healthy infants for wrongful life, adopting the reasoning in Berman that the infant is in essence claiming that its very life is wrongful, but it has not suffered any damage recognizable by the law by being brought into existence. Even an infant with birth disabilities will not prevail in the vast majority of jurisdictions, with California being a notable exception. One of the latest courts to deny a claim for wrongful life was the South Carolina Supreme Court.

Finally, we should distinguish wrongful birth and wrongful life cases from those cases in which a doctor inflicts harm on the fetus in utero (for example, by administration of a teratogenic drug). A lawsuit would then be available to the injured infant, but there is controversy surrounding when the legal duty to the fetus arises (that is, before fetal viability, after viability, or even preconception, such as in cases of genetic damage to an ovum from physical, chemical, or radiologic injury). There is also an issue as to whether a stillborn fetus has a cause of action for wrongful death, or whether the child has first to be born alive. The resolution of this question centers in part on the language and intent of each state’s wrongful death statute.

This column, "Law & Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author.

Question: Following a negligently performed tubal ligation, a 45-year-old multiparous woman subsequently became pregnant and delivered her fifth child, who was born healthy. Which of the following choices is best?

A. Both mother and child can sue for damages.

B. Mother can sue doctor for negligent tubal ligation and wrongful birth.

C. Child, even if perfectly healthy, can sue for wrongful life.

D. Child will most likely prevail if he was born with birth disabilities.

E. Life, even if imperfect, is always better than nonlife, so nobody will be successful in any lawsuit.

Answer: B. Negligently performed sterilization procedures such as vasectomy or tubal ligation can form the basis for a malpractice lawsuit. Should the parents file a claim, the lawsuit is confusingly termed wrongful birth (or better, wrongful pregnancy).

The law has traditionally barred a wrongful life action. The prime reason given is that life, even if imperfect, is always preferable to nonlife. Besides, it would be impossible to assess the quantum of damages since it would necessarily require placing a monetary worth on human existence. The seminal case is the 1967 New Jersey decision in Gleitman v. Cosgrove. The mother had contracted rubella during early pregnancy and the doctor had wrongly assured her that no harm would come to the fetus. As a result, she did not seek to terminate her pregnancy. In rejecting the child’s wrongful life claim, the court asserted that the "infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination." Concerned that it would otherwise be viewed as advocating abortion, the court also denied the mother’s separate claim for wrongful birth, choosing instead to focus on the "unmeasurable, and complex human benefits of motherhood and fatherhood."

New Jersey’s position has since changed, and in Berman v. Allan, it allowed damages for maternal emotional distress though not for medical and other expenses of raising the child. The court, however, continued to reject the infant’s claim for wrongful life. But in 1984, it allowed such a claim under very special circumstances. The infant was born with multiple congenital abnormalities (blindness, deafness, and mental retardation) after the physician had failed to diagnose rubella in the mother. By the time the case was brought, the statute of limitations had lapsed, barring the parents from filing an action. The court held that "a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority."

It was once argued that the defendant doctor owes no duty where his/her tortious acts or omissions had resulted in the birth of a healthy if unplanned child, since the benefits to the parents of having a healthy child outweigh any detriments. This line of reasoning has gradually eroded, and parents can now recover damages for pecuniary losses and even emotional distress for wrongful birth. The damages cover the physical, emotional, and financial costs of pregnancy and delivery, but not the costs associated with the normal rearing of a healthy child. In exceptional cases, courts have awarded limited damages to the parents for some child-rearing costs (for example, where the child is physically or mentally handicapped).

However, the legal situation is quite different for the infant. In the case of a failed sterilization or abortion procedure, for example, only the parents – not the infant – will have redress at law. Courts continue to refuse claims brought by healthy infants for wrongful life, adopting the reasoning in Berman that the infant is in essence claiming that its very life is wrongful, but it has not suffered any damage recognizable by the law by being brought into existence. Even an infant with birth disabilities will not prevail in the vast majority of jurisdictions, with California being a notable exception. One of the latest courts to deny a claim for wrongful life was the South Carolina Supreme Court.

Finally, we should distinguish wrongful birth and wrongful life cases from those cases in which a doctor inflicts harm on the fetus in utero (for example, by administration of a teratogenic drug). A lawsuit would then be available to the injured infant, but there is controversy surrounding when the legal duty to the fetus arises (that is, before fetal viability, after viability, or even preconception, such as in cases of genetic damage to an ovum from physical, chemical, or radiologic injury). There is also an issue as to whether a stillborn fetus has a cause of action for wrongful death, or whether the child has first to be born alive. The resolution of this question centers in part on the language and intent of each state’s wrongful death statute.

This column, "Law & Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author.

Question: Following a negligently performed tubal ligation, a 45-year-old multiparous woman subsequently became pregnant and delivered her fifth child, who was born healthy. Which of the following choices is best?

A. Both mother and child can sue for damages.

B. Mother can sue doctor for negligent tubal ligation and wrongful birth.

C. Child, even if perfectly healthy, can sue for wrongful life.

D. Child will most likely prevail if he was born with birth disabilities.

E. Life, even if imperfect, is always better than nonlife, so nobody will be successful in any lawsuit.

Answer: B. Negligently performed sterilization procedures such as vasectomy or tubal ligation can form the basis for a malpractice lawsuit. Should the parents file a claim, the lawsuit is confusingly termed wrongful birth (or better, wrongful pregnancy).

The law has traditionally barred a wrongful life action. The prime reason given is that life, even if imperfect, is always preferable to nonlife. Besides, it would be impossible to assess the quantum of damages since it would necessarily require placing a monetary worth on human existence. The seminal case is the 1967 New Jersey decision in Gleitman v. Cosgrove. The mother had contracted rubella during early pregnancy and the doctor had wrongly assured her that no harm would come to the fetus. As a result, she did not seek to terminate her pregnancy. In rejecting the child’s wrongful life claim, the court asserted that the "infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination." Concerned that it would otherwise be viewed as advocating abortion, the court also denied the mother’s separate claim for wrongful birth, choosing instead to focus on the "unmeasurable, and complex human benefits of motherhood and fatherhood."

New Jersey’s position has since changed, and in Berman v. Allan, it allowed damages for maternal emotional distress though not for medical and other expenses of raising the child. The court, however, continued to reject the infant’s claim for wrongful life. But in 1984, it allowed such a claim under very special circumstances. The infant was born with multiple congenital abnormalities (blindness, deafness, and mental retardation) after the physician had failed to diagnose rubella in the mother. By the time the case was brought, the statute of limitations had lapsed, barring the parents from filing an action. The court held that "a child or his parents may recover special damages for extraordinary medical expenses incurred during infancy, and that the infant may recover those expenses during his majority."

It was once argued that the defendant doctor owes no duty where his/her tortious acts or omissions had resulted in the birth of a healthy if unplanned child, since the benefits to the parents of having a healthy child outweigh any detriments. This line of reasoning has gradually eroded, and parents can now recover damages for pecuniary losses and even emotional distress for wrongful birth. The damages cover the physical, emotional, and financial costs of pregnancy and delivery, but not the costs associated with the normal rearing of a healthy child. In exceptional cases, courts have awarded limited damages to the parents for some child-rearing costs (for example, where the child is physically or mentally handicapped).

However, the legal situation is quite different for the infant. In the case of a failed sterilization or abortion procedure, for example, only the parents – not the infant – will have redress at law. Courts continue to refuse claims brought by healthy infants for wrongful life, adopting the reasoning in Berman that the infant is in essence claiming that its very life is wrongful, but it has not suffered any damage recognizable by the law by being brought into existence. Even an infant with birth disabilities will not prevail in the vast majority of jurisdictions, with California being a notable exception. One of the latest courts to deny a claim for wrongful life was the South Carolina Supreme Court.

Finally, we should distinguish wrongful birth and wrongful life cases from those cases in which a doctor inflicts harm on the fetus in utero (for example, by administration of a teratogenic drug). A lawsuit would then be available to the injured infant, but there is controversy surrounding when the legal duty to the fetus arises (that is, before fetal viability, after viability, or even preconception, such as in cases of genetic damage to an ovum from physical, chemical, or radiologic injury). There is also an issue as to whether a stillborn fetus has a cause of action for wrongful death, or whether the child has first to be born alive. The resolution of this question centers in part on the language and intent of each state’s wrongful death statute.

This column, "Law & Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is former professor of medicine and adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author.

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: A 45-year-old woman consulted her family physician for a breast lump. She has no family history of breast cancer and no other risk factors. The physician was unable to palpate the mass, so he reassured the patient and scheduled a follow-up appointment in 6 weeks. Patient forgot her appointment, but returned a year later complaining of an enlarging mass, which proved to be malignant. Which of the following statements is best?

A. The physician is justified in asking the patient to return for a repeat exam, as this can be shown to constitute customary standard of care.

B. National clinical practice guidelines require a screening mammogram in this case.

C. The physician will definitely prevail by relying on the latest practice guideline as a shield against a lawsuit.

D. Patient will win simply by choosing a different supporting guideline.

E. Clinical guidelines are just that, a guide, and carry no legal significance.

Answer: A. As no mass was palpated in this low-risk patient, whether the physician should have immediately ordered a mammogram would depend on factors such as family history, menstrual history, chest radiation, and age. The defense expert will testify that scheduling a recheck in 6 weeks in lieu of an immediate mammogram meets the legal standard of care. Additionally, the physician will attempt to use the recent national practice guidelines on screening mammography (age 50 and older, as opposed to the older guidelines that recommended screening starting at age 40) as exculpatory evidence. The plaintiff may refer to other guidelines, although her best arguments are that in her case, mammography would have been diagnostic, not screening, and that she should have received a reminder regarding her missed appointment.

Practice guidelines are defined by the Institute of Medicine as "systematically developed statements to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances." Some 2,000 guidelines have been developed by medical organizations and governmental agencies, as well as insurance carriers, managed care organizations, and others. These guidelines purport to define the best evidence-based medicine. If they are arrived at by consensus of an authoritative body of experts, courts will tend to view them as reflective, though not necessarily dispositive, of customary medical standards (Pollard v. Goldsmith). On the other hand, guidelines become less credible if they primarily are written to reduce health care costs.

Practice guidelines have been variously described as recipes, parameters, and rudimentary road maps, and physicians have been slow to adopt them, including those promulgated by authoritative federal organizations such as the Agency for Healthcare Research and Quality.

Notwithstanding their limitations, guidelines should not be dismissed as having no legal significance. They are usually allowed into evidence, much like textbooks and scientific articles, as an exception to the hearsay rule of evidence (learned treatise exception). However, some jurisdictions such as Maryland have ruled them inadmissible as evidence in courts of law. At the other extreme, states such as Maine allow doctors to elect to be covered by practice guidelines, with such compliance constituting evidence against any allegation of negligence.

Practice guidelines are double-edged swords, as they may be used in some jurisdictions either to exculpate or inculpate, i.e., exonerating or implicating the doctor. Both plaintiff and defense attorneys are increasingly confronting guideline issues. Still, the proliferation of practice guidelines has tended to increase, not decrease, the use of medical experts. Guidelines frequently are written to underscore a minimal rather than an ordinary or customary standard. Negligence is about breaching an objective customary standard, and guidelines may meet, exceed, or even fall below that standard. Both the plaintiff and defendant are required to produce experts to legally establish what constitutes standard as opposed to substandard care.

Medical standards are issues of fact that are ultimately determined by the jury, not the judge. It is highly unusual therefore for a judge in a jury trial to decide what constitutes the proper standard.

This column, "Law and Medicine," regularly appears in Internal Medicine News, an Elsevier publication. Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Failure to biopsy “cyst” delays cancer diagnosis

A 42-YEAR-OLD WOMAN consulted a dermatologist in October about a suspicious lesion on her face. The dermatologist diagnosed a benign cyst. The patient wanted the lesion removed; the dermatologist instead told her to return in the spring. He didn’t perform a biopsy or refer the patient to a plastic surgeon for a biopsy.

By the following May, the patient observed that the lesion was growing, comprising 2 lumps instead of 1, and had become inflamed. She immediately consulted the dermatologist, who maintained that the lesion was a cyst and didn’t biopsy it. He injected cortisone to shrink the lesion.

When the patient visited her family physician the next day for an unrelated matter, the doctor expressed concern about the facial lesion and referred the patient to a plastic surgeon, who performed a biopsy. The biopsy revealed liposarcoma.

The patient underwent 4 surgeries and extensive radiation therapy. The surgery severely disfigured her face. She subsequently developed necrosis of the cheek bone, necessitating surgical debridement and leading to the loss of 4 teeth. Extensive burns to her mouth, face, and neck as well as scar tissue made it difficult for her to open her mouth to eat and speak. She ultimately underwent 8 reconstructive facial operations.

PLAINTIFF’S CLAIM The dermatologist was negligent in failing to perform a biopsy. If the cancer had been diagnosed in October, it could have been excised easily with 1 surgery; the patient wouldn’t have needed extensive radiation or reconstructive surgeries. The delay in diagnosis increased the risk of recurrence and spread of the cancer.

THE DEFENSE Referral to a plastic surgeon was discussed in October, a claim the patient denied. The patient would have required the same treatment even if the cancer had been diagnosed in October because the cancer had been deep in the jaw muscle for several years, and had become more aggressive and appeared as a lesion on the face shortly before the patient’s initial visit.

VERDICT $5.35 million Pennsylvania verdict.

COMMENT Timely biopsy of skin lesions is imperative, particularly at a patient’s request or when a change is noted.

Did history of headaches hinder a thorough evaluation?

A THROBBING HEADACHE that became increasingly worse over 48 hours prompted a 43-year-old woman to go to her doctor’s office. She reported nausea, vomiting, and photophobia to the covering physician. The woman had a history of headaches, which she attributed to previous ear surgery. The physician prescribed pain and antinausea medications and told the patient to follow up with her regular primary care physician.

The patient went home and fell asleep on her couch; she subsequently died in her sleep. An autopsy cited bacterial meningitis as the cause of death.

PLAINTIFF’S CLAIM The question of whether the covering physician should have considered bacterial meningitis turned on whether the patient had nuchal rigidity. Witnesses called by the plaintiff testified that the patient couldn’t move her neck during the period in question.

THE DEFENSE The physician conceded that if he’d observed nuchal rigidity, he would have considered bacterial meningitis. He testified that the patient didn’t have nuchal rigidity but that he hadn’t recorded that finding.

VERDICT $1.45 million Massachusetts settlement.

COMMENT Although most headaches are explained by relatively benign causes, serious problems such as meningitis or hemorrhage should always remain in the differential diagnosis. And complete documentation is key to a successful malpractice defense.

Failure to biopsy “cyst” delays cancer diagnosis

A 42-YEAR-OLD WOMAN consulted a dermatologist in October about a suspicious lesion on her face. The dermatologist diagnosed a benign cyst. The patient wanted the lesion removed; the dermatologist instead told her to return in the spring. He didn’t perform a biopsy or refer the patient to a plastic surgeon for a biopsy.

By the following May, the patient observed that the lesion was growing, comprising 2 lumps instead of 1, and had become inflamed. She immediately consulted the dermatologist, who maintained that the lesion was a cyst and didn’t biopsy it. He injected cortisone to shrink the lesion.

When the patient visited her family physician the next day for an unrelated matter, the doctor expressed concern about the facial lesion and referred the patient to a plastic surgeon, who performed a biopsy. The biopsy revealed liposarcoma.

The patient underwent 4 surgeries and extensive radiation therapy. The surgery severely disfigured her face. She subsequently developed necrosis of the cheek bone, necessitating surgical debridement and leading to the loss of 4 teeth. Extensive burns to her mouth, face, and neck as well as scar tissue made it difficult for her to open her mouth to eat and speak. She ultimately underwent 8 reconstructive facial operations.

PLAINTIFF’S CLAIM The dermatologist was negligent in failing to perform a biopsy. If the cancer had been diagnosed in October, it could have been excised easily with 1 surgery; the patient wouldn’t have needed extensive radiation or reconstructive surgeries. The delay in diagnosis increased the risk of recurrence and spread of the cancer.

THE DEFENSE Referral to a plastic surgeon was discussed in October, a claim the patient denied. The patient would have required the same treatment even if the cancer had been diagnosed in October because the cancer had been deep in the jaw muscle for several years, and had become more aggressive and appeared as a lesion on the face shortly before the patient’s initial visit.

VERDICT $5.35 million Pennsylvania verdict.

COMMENT Timely biopsy of skin lesions is imperative, particularly at a patient’s request or when a change is noted.

Did history of headaches hinder a thorough evaluation?

A THROBBING HEADACHE that became increasingly worse over 48 hours prompted a 43-year-old woman to go to her doctor’s office. She reported nausea, vomiting, and photophobia to the covering physician. The woman had a history of headaches, which she attributed to previous ear surgery. The physician prescribed pain and antinausea medications and told the patient to follow up with her regular primary care physician.

The patient went home and fell asleep on her couch; she subsequently died in her sleep. An autopsy cited bacterial meningitis as the cause of death.

PLAINTIFF’S CLAIM The question of whether the covering physician should have considered bacterial meningitis turned on whether the patient had nuchal rigidity. Witnesses called by the plaintiff testified that the patient couldn’t move her neck during the period in question.

THE DEFENSE The physician conceded that if he’d observed nuchal rigidity, he would have considered bacterial meningitis. He testified that the patient didn’t have nuchal rigidity but that he hadn’t recorded that finding.

VERDICT $1.45 million Massachusetts settlement.

COMMENT Although most headaches are explained by relatively benign causes, serious problems such as meningitis or hemorrhage should always remain in the differential diagnosis. And complete documentation is key to a successful malpractice defense.

Failure to biopsy “cyst” delays cancer diagnosis

A 42-YEAR-OLD WOMAN consulted a dermatologist in October about a suspicious lesion on her face. The dermatologist diagnosed a benign cyst. The patient wanted the lesion removed; the dermatologist instead told her to return in the spring. He didn’t perform a biopsy or refer the patient to a plastic surgeon for a biopsy.

By the following May, the patient observed that the lesion was growing, comprising 2 lumps instead of 1, and had become inflamed. She immediately consulted the dermatologist, who maintained that the lesion was a cyst and didn’t biopsy it. He injected cortisone to shrink the lesion.

When the patient visited her family physician the next day for an unrelated matter, the doctor expressed concern about the facial lesion and referred the patient to a plastic surgeon, who performed a biopsy. The biopsy revealed liposarcoma.

The patient underwent 4 surgeries and extensive radiation therapy. The surgery severely disfigured her face. She subsequently developed necrosis of the cheek bone, necessitating surgical debridement and leading to the loss of 4 teeth. Extensive burns to her mouth, face, and neck as well as scar tissue made it difficult for her to open her mouth to eat and speak. She ultimately underwent 8 reconstructive facial operations.

PLAINTIFF’S CLAIM The dermatologist was negligent in failing to perform a biopsy. If the cancer had been diagnosed in October, it could have been excised easily with 1 surgery; the patient wouldn’t have needed extensive radiation or reconstructive surgeries. The delay in diagnosis increased the risk of recurrence and spread of the cancer.

THE DEFENSE Referral to a plastic surgeon was discussed in October, a claim the patient denied. The patient would have required the same treatment even if the cancer had been diagnosed in October because the cancer had been deep in the jaw muscle for several years, and had become more aggressive and appeared as a lesion on the face shortly before the patient’s initial visit.

VERDICT $5.35 million Pennsylvania verdict.

COMMENT Timely biopsy of skin lesions is imperative, particularly at a patient’s request or when a change is noted.

Did history of headaches hinder a thorough evaluation?

A THROBBING HEADACHE that became increasingly worse over 48 hours prompted a 43-year-old woman to go to her doctor’s office. She reported nausea, vomiting, and photophobia to the covering physician. The woman had a history of headaches, which she attributed to previous ear surgery. The physician prescribed pain and antinausea medications and told the patient to follow up with her regular primary care physician.

The patient went home and fell asleep on her couch; she subsequently died in her sleep. An autopsy cited bacterial meningitis as the cause of death.

PLAINTIFF’S CLAIM The question of whether the covering physician should have considered bacterial meningitis turned on whether the patient had nuchal rigidity. Witnesses called by the plaintiff testified that the patient couldn’t move her neck during the period in question.

THE DEFENSE The physician conceded that if he’d observed nuchal rigidity, he would have considered bacterial meningitis. He testified that the patient didn’t have nuchal rigidity but that he hadn’t recorded that finding.

VERDICT $1.45 million Massachusetts settlement.

COMMENT Although most headaches are explained by relatively benign causes, serious problems such as meningitis or hemorrhage should always remain in the differential diagnosis. And complete documentation is key to a successful malpractice defense.

Question: Billy underwent a tonsillectomy at age 8 years. Unbeknownst to him and his parents, a tiny surgical clip had slipped down the trachea during surgery. Billy was largely asymptomatic until age 20, when he began to develop recurrent respiratory infections and asthma. X-rays eventually identified a foreign body in his right lung. He filed a malpractice lawsuit when he turned 23, and the case was dismissed because the statute of limitations had lapsed. On appeal, which of the following is best?

A. The statute of limitations usually requires all malpractice lawsuits to be filed within 2 years of the negligent act.

B. In the case of minors, disability, and concealment, the statute may be tolled, thereby giving the plaintiff more time to file a claim.

C. The statute starts to run when the cause of action accrues, i.e., when the claimant knew or should have known of the injury.

D. B and C are correct

E. A, B, and C are correct

Answer: D. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called "doctrine of latches" that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, that is, relieving him or her from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. The statute of limitations does not start to run from the date of the negligent act or omission, but from the time of reasonable discovery of the damage. For example, if there is a failure to diagnose and treat a cancerous condition in a timely manner and the patient suffers harm several years later, time starts to run from the date of discovering the injury, not the date of misdiagnosis.

In malpractice cases involving minors, the running of the time period is tolled, that is, halted, until the minor reaches a certain age, commonly the age of majority. Chaffin v. Nicosia dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.

Patients who are injured from malpractice might not always be aware that a negligent act had taken place or that it had caused the injury. And some injuries might remain latent for a long time. Recognizing this, all statutes of limitations emphasize the date when the plaintiff first discovered that the injury was the result of the act or omission of the healthcare provider. This is termed the discovery rule. Stated more formally, the limitation period commences at the time the cause of action "accrues," and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

There may be other statutory prescriptions. For example, Ohio, which has a 1-year statute of limitations, provides that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship finally terminates. In cases of fraudulent concealment of a right of action, the statute may be tolled during the period of concealment. Tolling also might apply during legal disability or in case of retained surgical instrument or sponge.

Courts are apt to closely scrutinize attempts to use the statute of limitations to bar recovery, because this deprives the injured plaintiff of an otherwise legitimate claim. In a typical example, the defendants sought to dismiss the case (so-called motion for summary judgment) by arguing that the plaintiff filed suit some 32 months after she had developed Sheehan’s syndrome from postpartum hemorrhagic shock, and this exceeded the 2-year statute of limitations. The court ruled that "Since reasonable minds could differ as to when the injury and its operative cause should have been discovered by a reasonably diligent patient, the timeliness of the plaintiff’s claims should be decided by a jury and the motions for summary judgment will therefore be denied."

Litigation over time-barred actions is seen not only in medical malpractice, but also in other types of personal injuries; in products liability, for example, asbestos injuries; and in childhood sexual abuse.

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (Hackensack, N.J.; World Scientific Publishing Company 2006). For additional information, readers may contact the author at [email protected].

Question: Billy underwent a tonsillectomy at age 8 years. Unbeknownst to him and his parents, a tiny surgical clip had slipped down the trachea during surgery. Billy was largely asymptomatic until age 20, when he began to develop recurrent respiratory infections and asthma. X-rays eventually identified a foreign body in his right lung. He filed a malpractice lawsuit when he turned 23, and the case was dismissed because the statute of limitations had lapsed. On appeal, which of the following is best?

A. The statute of limitations usually requires all malpractice lawsuits to be filed within 2 years of the negligent act.

B. In the case of minors, disability, and concealment, the statute may be tolled, thereby giving the plaintiff more time to file a claim.

C. The statute starts to run when the cause of action accrues, i.e., when the claimant knew or should have known of the injury.

D. B and C are correct

E. A, B, and C are correct

Answer: D. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called "doctrine of latches" that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, that is, relieving him or her from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. The statute of limitations does not start to run from the date of the negligent act or omission, but from the time of reasonable discovery of the damage. For example, if there is a failure to diagnose and treat a cancerous condition in a timely manner and the patient suffers harm several years later, time starts to run from the date of discovering the injury, not the date of misdiagnosis.

In malpractice cases involving minors, the running of the time period is tolled, that is, halted, until the minor reaches a certain age, commonly the age of majority. Chaffin v. Nicosia dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.

Patients who are injured from malpractice might not always be aware that a negligent act had taken place or that it had caused the injury. And some injuries might remain latent for a long time. Recognizing this, all statutes of limitations emphasize the date when the plaintiff first discovered that the injury was the result of the act or omission of the healthcare provider. This is termed the discovery rule. Stated more formally, the limitation period commences at the time the cause of action "accrues," and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

There may be other statutory prescriptions. For example, Ohio, which has a 1-year statute of limitations, provides that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship finally terminates. In cases of fraudulent concealment of a right of action, the statute may be tolled during the period of concealment. Tolling also might apply during legal disability or in case of retained surgical instrument or sponge.

Courts are apt to closely scrutinize attempts to use the statute of limitations to bar recovery, because this deprives the injured plaintiff of an otherwise legitimate claim. In a typical example, the defendants sought to dismiss the case (so-called motion for summary judgment) by arguing that the plaintiff filed suit some 32 months after she had developed Sheehan’s syndrome from postpartum hemorrhagic shock, and this exceeded the 2-year statute of limitations. The court ruled that "Since reasonable minds could differ as to when the injury and its operative cause should have been discovered by a reasonably diligent patient, the timeliness of the plaintiff’s claims should be decided by a jury and the motions for summary judgment will therefore be denied."

Litigation over time-barred actions is seen not only in medical malpractice, but also in other types of personal injuries; in products liability, for example, asbestos injuries; and in childhood sexual abuse.

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (Hackensack, N.J.; World Scientific Publishing Company 2006). For additional information, readers may contact the author at [email protected].

Question: Billy underwent a tonsillectomy at age 8 years. Unbeknownst to him and his parents, a tiny surgical clip had slipped down the trachea during surgery. Billy was largely asymptomatic until age 20, when he began to develop recurrent respiratory infections and asthma. X-rays eventually identified a foreign body in his right lung. He filed a malpractice lawsuit when he turned 23, and the case was dismissed because the statute of limitations had lapsed. On appeal, which of the following is best?

A. The statute of limitations usually requires all malpractice lawsuits to be filed within 2 years of the negligent act.

B. In the case of minors, disability, and concealment, the statute may be tolled, thereby giving the plaintiff more time to file a claim.

C. The statute starts to run when the cause of action accrues, i.e., when the claimant knew or should have known of the injury.

D. B and C are correct

E. A, B, and C are correct

Answer: D. At common law, there was no time limit that barred a plaintiff from bringing a claim, although there was a so-called "doctrine of latches" that foreclosed an action that had long lapsed. However, statutory changes in the law now require that complaints be brought in a timely manner so that the evidence remains fresh, accurate, and reliable. Another reason is to provide repose to the wrongdoer, that is, relieving him or her from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, although states like California and Tennessee place a 1-year limit on medical malpractice claims under some circumstances. The statute of limitations does not start to run from the date of the negligent act or omission, but from the time of reasonable discovery of the damage. For example, if there is a failure to diagnose and treat a cancerous condition in a timely manner and the patient suffers harm several years later, time starts to run from the date of discovering the injury, not the date of misdiagnosis.

In malpractice cases involving minors, the running of the time period is tolled, that is, halted, until the minor reaches a certain age, commonly the age of majority. Chaffin v. Nicosia dealt with such a situation. As the result of negligent forceps delivery, which injured the optic nerve, the plaintiff became blind in the right eye in early infancy. He brought suit when he was 22 years old. Indiana had two statutes on the issue, one requiring a malpractice suit to be brought within 2 years of the incident, and the other allowing a minor to sue no later than 2 years after reaching the age of 21. The Indiana Supreme Court allowed the case to go forward, reversing the lower court’s decision barring the action.

Patients who are injured from malpractice might not always be aware that a negligent act had taken place or that it had caused the injury. And some injuries might remain latent for a long time. Recognizing this, all statutes of limitations emphasize the date when the plaintiff first discovered that the injury was the result of the act or omission of the healthcare provider. This is termed the discovery rule. Stated more formally, the limitation period commences at the time the cause of action "accrues," and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

There may be other statutory prescriptions. For example, Ohio, which has a 1-year statute of limitations, provides that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship finally terminates. In cases of fraudulent concealment of a right of action, the statute may be tolled during the period of concealment. Tolling also might apply during legal disability or in case of retained surgical instrument or sponge.

Courts are apt to closely scrutinize attempts to use the statute of limitations to bar recovery, because this deprives the injured plaintiff of an otherwise legitimate claim. In a typical example, the defendants sought to dismiss the case (so-called motion for summary judgment) by arguing that the plaintiff filed suit some 32 months after she had developed Sheehan’s syndrome from postpartum hemorrhagic shock, and this exceeded the 2-year statute of limitations. The court ruled that "Since reasonable minds could differ as to when the injury and its operative cause should have been discovered by a reasonably diligent patient, the timeliness of the plaintiff’s claims should be decided by a jury and the motions for summary judgment will therefore be denied."

Litigation over time-barred actions is seen not only in medical malpractice, but also in other types of personal injuries; in products liability, for example, asbestos injuries; and in childhood sexual abuse.

Dr. Tan is professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (Hackensack, N.J.; World Scientific Publishing Company 2006). For additional information, readers may contact the author at [email protected].