In DeYoung v. Providence Medical Center, the plaintiff asked the Supreme Court of the State of Washington to reinstate the malpractice case against her former physician after the suit was dismissed for being brought too late. The state’s Statute of Repose prevented plaintiffs from filing medical malpractice cases eight years or more after the alleged negligent treatment. In the DeYoung appeal, the Washington high court was asked to consider whether this statute of repose violated the state’s constitution. The court ultimately overturned the Statute of Repose, and allowed the case to proceed.
The case involved radiation treatment that plaintiff Shirlee DeYoung received in 1980. Claiming she first learned that the radiation caused damage to her eyes 15 years after the treatment, DeYoung filed a malpractice claim against her doctor and his corporate employer in 1996.
At the time DeYoung filed suit, Washington state law included both a Statute of Limitations and a Statute of Repose. The Statute of Limitations said that a plaintiff must bring a medical malpractice suit within three years of discovering the injury. However, the Statute of Repose said no malpractice claim could be brought more than eight years after alleged negligent treatment —regardless of when the patient discovered the injury. This essentially created an outside edge to the period in which a plaintiff could start a lawsuit.
In the DeYoung case, the defendant physician filed a motion for summary judgment, arguing that the case could not go forward because of the Statute of Repose. The trial court allowed the motion and dismissed the case. But DeYoung challenged the trial court’s ruling by arguing that the Statute of Repose was unconstitutional. She claimed it interfered with her right to indemnification, which was a substantial property right under the state’s constitution.
To determine whether the statute was constitutional, the Supreme Court of the State of Washington assessed whether the law was rationally related to protecting a legitimate state interest. The court began by looking at the legislative purpose of the statute, which was passed in 1976 in response to an insurance crisis. Between 1972 and 1974, the amount that insurance companies paid for malpractice claims increased substantially, and medical malpractice insurance was becoming less available.
At the time, there was a three-year Statute of Limitations for medical malpractice claims, but no Statute of Repose. Therefore, a plaintiff like DeYoung could bring a claim against her doctor decades after receiving treatment, if she was unable to discover the cause of her injury earlier. The legislature, believing that this was a significant factor in the medmal insurance crisis, enacted the eight-year Statute of Repose to protect the insurance companies, and ultimately the physicians and their patients.
Finding the purpose of the Statute of Repose legitimate, the Washington Supreme Court then inquired whether there was a rational relationship between the purpose and the statute. They looked at data indicating that in the mid-1970s less than one percent of all malpractice claims were brought more than eight years after the alleged negligence. Because the statute affected so few claims, the court found it could not “avert or resolve a malpractice insurance crisis.” Therefore, the court held the Statute of Repose was not rationally related to the state’s legitimate interest in stabilizing the insurance industry.
A number of other states have enacted statutes of repose, and this ruling does not affect them directly. Unlike the State of Washington, the majority of these states have upheld their statutes as constitutional. In Massachusetts, for example, the Statute of Limitations is three years after the plaintiff knew or should have known of the negligent act. And, a separate Statute of Repose places an outside limit of seven years after the alleged negligent treatment, regardless of when the patient learned of it, except when the alleged negligence involves a minor child or the leaving of a foreign object in the body. When the constitutionality of Massachusetts’ Statute of Repose was challenged, the state’s Supreme Judicial Court upheld it. The legislative purpose of the Massachusetts statute was to prevent defendants from facing a claim when evidence had been lost, memories had faded, and witnesses had disappeared. The Court found this purpose to be legitimate, and held that the statute was rationally related to this purpose.
In states where a Statute of Repose is in effect, medical providers should retain their patients’ records for at least the number of years set forth by the statute. It is fine, and sometimes advisable, to keep records for a longer time period. For example, a physician who treats both the parents and children in one family would be well-served to keep the children’s records as long as she keeps the parents’ —even if the children have grown up and moved out.
Providers with questions on how long to retain records may wish to seek further guidance from their institutional risk manager.
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