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Long Statutes of Limitation

The period of time that a physician may be sued for malpractice by or for a child is much longer than it is for an adult. Most states have a statute of limitations that starts when the injury occurs or when it is discovered by the patient. It is common practice to toll the statute of limitations on children until the child reaches the age of majority. For instance, an adult patient might have two years to bring suit. A 3-year-old child may have until age 18 plus 2 more years to bring a malpractice suit, a total of 17 years. This prevents the child's rights from being compromised if the parents fail to pursue the action.

The functional statute of limitations may also be quite long if the statutory period does not begin to run until the injury is discovered. Assume that the uterus of a 5-year-old child is negligently damaged during bladder surgery. As the child grows, her sexual development is normal, and no problem is suspected. The girl reaches adulthood, marries, and uses contraceptives to postpone childbearing until she is ready for children. At age 30, she attempts to conceive and is unable to do so. After two years of infertility, she has a surgical procedure that reveals that the damage from the first surgery is the reason for her infertility. If the statute of limitations runs until two years after the injury is discovered, this patient may be age 34 when she sues the surgeon for an operation done 29 years before.

Despite the long-term potential liability and the uncertainty it generates in malpractice insurance rate setting, general pediatricians still pay relatively low rates. Nonetheless, all physicians who care for children should be careful to preserve medical records until at least a few years past the child's maturity. As with other medical records, the physician should attempt to provide the patient with a copy before destroying the old record. (See Chapter 8.) While this is difficult with records of now-adult pediatric patients, these records can be especially valuable. Unlike adults who are informed of the nature of their illness at the time the care is rendered, pediatric patients have no personal memory of their early

medical history. This history can be important for their adult medical care and for determining the presence of inherited conditions that may afflict their own children.

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