Personal Injury Law

Missouri Medical Malpractice - Statute of Limitations - Tolling and Exceptions to the 2 Year Statute of Limitations

By Benjamin J. Sansone, Esq.

As any Missouri personal injury lawyer would know, the statute of limitations to bring a Missouri medical malpractice lawsuit is generally 2 years from the date of the alleged Missouri medical negligence. This rule is laid out in Missouri Statute 516.105, Actions Against Healthcare Providers.

However, patients often do not know there was any negligence on behalf of a doctor or other medical care provider until it is too late, i.e. more than 2 years or so close to the 2 year limit that proper investigation needed to prepare a lawsuit is impractical; being that a medical malpractice lawsuit in Missouri requires a "certificate of merit" by a medical professional in the same area of medicine. This often takes weeks, if not months to get.

There are several exceptions that can toll the start of the two years, one of the primary exceptions is the "failure to inform exception" laid out in Missouri Statute 516.105(2). If the alleged medical malpractice is the failure to inform a patient of test results, then the 2 years runs from the actual discovery of the adverse test results or when the patient "in the exercise of ordinary care should have discovered such alleged negligent failure to inform."

Once such case is currently pending in St Louis County Circuit Court. In the pending case, the patient had a mammogram in 2002 that revealed she had breast cancer, however, the doctor never informed the patient of the adverse test result; therefore, she did not discover she had breast cancer until almost 3 years later when she had a subsequent mammogram in early 2005. Undoubtedly, the cancer was much more severe and progressive in 2005 than it was in 2002; leading to more invasive, aggressive, and drawn out medical treatment.

The Defendant hospital and doctor tried to have the case dismissed claiming that the patient should not be able to recover because the case was not filed until August 2005, 3 years after the failure to inform; moreover, the defendants argued that the exception should not allow the statute to toll an extra year because the patient should have investigated or found out about the error on her own much sooner.

The defendant's filed a motion for summary judgment on the issue, and an order was recently entered that allowed justice for this poor woman to still be in reach. The Judge held that the statute of limitations does not bar the case, but that a jury should be able to decide whether or not she should have investigated or got a subsequent test sooner.

Often we are bombarded with the propaganda that personal injury trial lawyers file unjust cases against doctors, when this could not be farther from the truth. Healthcare providers have more legal protections than any other individuals or entities under the Missouri Tort system; yet in this case a doctor clearly failed to inform a patient she had cancer and still attempts to blame the patient and claim the lawsuit is illegitimate.

Full post as published by Missouri Injury Law Blog on December 10, 2008 (boomark / email).