Chapter 5. Statutes of Limitation, Tolling, Tort Damage Caps, Certificates of Medical Merit, and Venue

• Pages: 71-83
• Author: James Bush

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5

STATUTES OF LIMITATION,

TOLLING, TORT DAMAGE CAPS,

CERTIFICATES OF MEDICAL

MERIT, AND VENUE

James Bush

This chapter is, in large part, a survey of a landscape shaped by states’ medical tort

reform efforts. Tort reform is an intensely political topic, and statutes of limitation,

tolling, damage caps, certificates of merit, and venue are just some of the means

used to regulate what has been alternatively described as a real or merely perceived

“lawsuit crisis” in the volume and impact of medical tort claims.1 While the sub-

stance of that debate is not addressed here, the effect has been the creation of a

legal terrain that varies significantly among states and is frequently reshaped by the

political process and litigation.

Especially in light of this constantly and quickly changing landscape, all prac-

titioners, whether experienced in or new to medical tort litigation, should tread

with a keen eye to detail, become familiar with the basic public policy consider-

ations at play, vigilantly update research, keep abreast of political developments

and appellate litigation, and regularly confer with colleagues practicing in the area.

Doing so will allow for effective early case assessment.

Statutes of Limitation: Language Is Key

Statutes of limitation are the chief means employed by state legislatures to curtail

the volume of various lawsuits, and medical tort claims receive particular atten-

tion. Limitations for medical tort claims are almost always distinct from common

negligence claims and are often shorter in their periods of both limitation and

repose. Many limitation statutes also contain specialized provisions for the unique

ways in which medical tort claims accrue, including a “discovery rule,” tolling in

instances of claims by minors or those with disabilities, tolling in instances of

fraud or intentional concealment, and tolling for claims relating to the discovery

1. F. Patrick Hubbard, The Nature and Impact of the “Tort Reform” Movement, 35 H L. R.

437, 469–71 (2006).

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