End Runs Around the Statute of Limitations
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.
Do you have any recommendations of attorneys in the eastern North Carolina region. The statute of limitations has passed for me, however I have been under different treatments since the original neglect took place. It's been a chain of events. I was on heavy narcotics and never once had a thought that I should file a case. I could barely function.