Trial Lawyer Resource Center

For plaintiffs’ lawyers, the statute of limitations is a habitual pest. As easy as it usually is to avoid, it is the most common basis for legal malpractice actions against personal injury lawyers. A more common pain for most of us is the great case where the statute of limitations has passed before the client calls. Who has not gotten a call from a deserving client with a great case only to find that the statute of limitations has long since passed? While it shocks plaintiffs’ lawyers that someone would sit on their rights for so long, it happens all the time. Late Sunday evening as I was getting ready for Christmas with my family, I got an intake call from a woman whose 14 year old son, who died last year, had had cerebral palsy spastic quadriplegia. This is the definition of a catastrophic personal injury case. I wanted to ask her – but didn’t – the question that was burning in my mind: why did you wait so long to call?

The statute of limitations is considered harsh and inflexible, even by those enforcing it to the detriment of a deserving plaintiff. But if you get a case where the statute of limitations has seemingly passed, make sure that your case does not fall within one of the four exceptions that most jurisdictions have in some form or other, which can extend the statute of limitations.

The first, and the most litigated, is the discovery rule. Under the discovery rule, an action begins to accrue when the injury victim knew or reasonably should have known of the negligence and the harm that ensued. This exception also has exceptions in many jurisdictions by statutes of repose that often apply in products liability and medical malpractice cases.

The second “end run" around the statute of limitations is the continuation of events theory. This may apply in cases where there is a continuation of services, like a lawyer performing services over time for a client, or when the victim’s right depends upon the happening of an event in the future. In these cases, the statute may often be extended beyond the date of a given act of negligence. The third exception is when the culpable party fraudulently conceals knowledge of a cause of action. In this case, in many jurisdictions, the cause of action does not begin to accrue until the reasonable discovery of the fraud.

The final exception, which would have saved the cerebral palsy example above, even if the young man had not died, is when a person is under a disability. A disability is defined as minors (under 18 in most jurisdictions) and plaintiffs who are mentally incompetent. If you think the statute of limitations kills your case, it probably does. But first make sure you turn over the rocks of these exceptions.

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In a perfect world, personal injury lawyers could just get the best possible recovery for their clients, either by settlement or trial, and that would be the end of it. Often, it is just the beginning of a case because of medical liens. In terms of hierarchy of difficulty, Medicare liens are among the most difficult. This post offers a few thoughts on dealing with Medicare liens.

Medicare was established in 1965 as a part of the Social Security Act. In theory and usually in practice, Medicare offers what should be a part of any civilized society: health insurance and medical care for the aged and disabled. When a personal injury plaintiff receives Medicare benefits, Medicare has a subrogation interest to any award given in a workers' compensation, medical malpractice or auto accident claim (both first and third party recoveries). While Medicare has been provided a direct right of action, they usually choose to piggyback off personal injury lawyers seeking compensation for their clients.

A Medicare lien has real teeth, taking priority over all other liens or interests on any settlement or judgment proceeds. If you ignore the lien, they can later seek a recovery not only from the injury victim, but also the lawyer. Unlike many liens, notice is not required, so lawyers need to find out if there is a Medicare lien, as opposed to sitting back passively waiting for a lien notice. Under the statute, if the lien exceeds the amount of the recovery, Medicare recovers the entire lien, excluding only the lawyer fees and expenses.

 So is there any hope beyond recovery of the attorneys’ fees? There is. Medicare has authority to reduce or waive its Medicare lien if it is in the “best interests of the program,” if the “probability of recovery, or the amount [of the recovery] not warrant pursuit” of the lien, or if enforcing the lien would lead to significant “financial hardship.” This means you have to find the right person to talk to at Medicare and you need to make a real case; you can’t just have a paralegal call and ask for a reduction. You also need patience, because getting a response takes time and multiple phone calls and letters.

Not surprisingly, the more of a reduction you seek, the more hoops you have to jump through. If the request exceeds $ 100,000.00, the Department of Justice decides whether a reduction is in order.  Obviously, this adds more time, more phone calls and more letters to the process.

There is nothing more frustrating than killing yourself to settle an auto accident or medical malpractice case, only to realize you work has just begun. But in many cases, it is the most essential work a lawyer can do on the case in terms of achieving some measure of justice for your injured client.

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