So we are in the midst of a trial and we discover that there is a medical malpractice issue that could be involved in the case. What do we do about that medical malpractice component? You may or may not need to involve the malpractice issue depending upon how much coverage there for the underlying accident but assuming that you don’t know for sure and you’re the lawyer, you’ve got to look at the medical malpractice because as we discussed the statute of limitations for medical malpractice is different than for the auto accident.
The medical malpractice statute begins to run either when it occurred or when it’s discovered, (with an outside of 5 years), so obviously the malpractice might not be discovered until some later date. The attorney needs to make sure that the statute for medical malpractice does not run while you are handling the underlying accident case. So if the case is in the midst of the litigation process or actually at trial and it is dragging out, as some cases do, you might need to make a decision. The attorney needs to decide whether or not you need to file that medical malpractice claim and either combine it with the underlining case or not.
Now there’s a third component of this. What happens if the Attorney either knew about the medical malpractice and forgets about it or reads in the medical report something that should have alerted him to it and the attorney does nothing about it. What happens if the medical malpractice statute lapses and needed to be included in the clients overall claim? That now could be professional malpractice against the attorney with its own statute of limitations. The statute of limitations there is similar to the medical component whereby, it’s when the malpractice happened or when it’s discovered. The reason it’s when it’s discovered becomes important because there are a lot of cases in which the attorney might not advise the client of the potential medical malpractice that had lapsed. (possibly to keep the client from making a professional malpractice claim. If a court determines that the attorney purposefully kept the information from the client, the statute of limitations would be tolled , (not run). Just because the client doesn’t know and hasn’t been told of it, if the attorney knew or should have known the statute can still be tolled and still be available even if it’s after three years from when it occurred.