We have spoken about jury trials, jury instructions, and then started talking about proximate cause and how that plays a role in jury instructions. We have spoken about the auto accident that brought us to the trial and a potential overlap of medical malpractice and how that would work.
There is a question as to how the statute of limitations would apply to these situations since they’re two separate causes of action. In fact, the statute of limitations happens to be different for the two. The auto accident is easy; it’s three years from the auto accident. We know when that occurred.
Medical malpractice is a little different and more difficult because not only might the statute begin to run three years from when the malpractice occurred, but also possibly three years from when you discovered or should have discovered the malpractice; often times the malpractice occurs and is not known until days, weeks, months, even years later. You have three years from the date of the malpractice or its discovery or when it should have been discovered but no longer than five years. You have a five year limit.
Let’s put the five year limit aside for the sake of our discussion, so we’re going to focus on the three years from the alleged occurrence and three year discovery part of this statute. We are going to assume for the sake of our next next discussion that whatever that malpractice might have been was not something readily apparent. In other words, you did not walk out of the hospital and say, "Oh my god, they’ve cut off my wrong arm."
You’re already in trial for the auto accident that caused you to go to obtain the medical treatment from which the alleged malpractice occurred. Now how does the attorney handle the malpractice that happened at the hospital? We’ll discuss that next.