Statute Of Limitations Missed By 7 Days

Among recent court cases was this case about missing the statute of limitations by 7 days when there was a wrongful death and personal injury claim. Statute of limitations are serious “drop dead” dates that dismiss cases. The question in each case is “when does the statute of limitations start to run?”

What Happened

January 29, 2004, Mamie Mack (age 86) underwent hip replacement surgery.
January 30, 2004, Ms. Evans notified by hospital that her mother, Ms. Mack, could not be awakened. Ms. Evans contacted a lawyer because she believed someone at the hospital had done something wrong in treating her mother.
February 19, 2004, Ms. Mack was discharged from the hospital and transferred to a nursing home facility.
August 5, 2004, Ms. Mack was returned to the hospital.
August 9, 2004, Ms. Mack died while at the hospital.
August 20, 2004, Ms. Evans was appointed the Administrator of Ms. Mack’s estate.
August 16, 2006, Ms. Evans mailed a Notice of Claim to the hospital.
November 17, 2006, Ms. Evans filed a complaint against the hospital and others alleging wrongful death and personal injury.
March 2009, the hospital filed a motion for summary judgment arguing that the claims were barred by the statute of limitations.
May 5, 2009, the circuit court granted the hospital’s motion for summary judgment. Ms. Evans appealed the circuit court’s ruling.

Court Decision

Ms. Evans asserted with regards to the wrongful death claim that she could not have known that the hospital’s negligence caused or contributed to Ms. Mack’s death until she was appointed Administrator of Ms. Mack’s estate on August 20, 2004 and she was able to obtain Ms. Mack’s medical records. The Supreme Court Of Appeals Of West Virginia found that Ms. Evans’ argument was disingenuous because she had expressed a concern before Ms. Mack’s death that the hospital had done something wrong to Ms. Mack. The Court ruled that the 2 year statute of limitations began to run on August 9, 2004 when Ms. Mack died and was not tolled by the “discovery rule” which says that the statute of limitations begins to run when you know or should have known of a possible claim.

With regards to the personal injury claim based on negligence, Ms. Evans asserted that Ms. Mack was “insane” prior to her death, that the 2 year statute of limitation was tolled during the period of insanity, and that the statute of limitations did not begin to run until she was appointed Administrator of Ms. Mack’s estate on August 20, 2004. The Court found that the statute of limitations is tolled during the period of a mental disability, that the mental disability is removed upon the injured person’s death, and that the statute of limitations begins to run at that time. Therefore, the Court found that statute of limitations began to run upon Ms. Mack’s death on August 9, 2004.

Conclusion

Ms. Evans claims for both wrongful death and personal injury were dismissed because they were barred by the applicable statute of limitations. This case illustrates that statute of limitations are serious and that if you even think that you might have a claim, you need to pursue it immediately. Had Ms. Evans not suspected that something wrong was done to Ms. Mack and had actually discovered that there was a possible claim after she got copies of Ms. Mack’s medical records, then the statute of limitations would likely have began to run later and her case would likely not have been dismissed.

EVANS v. HILLTOP HEALTHCARE CENTER, INC., ET AL. September 16, 2010

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