Filing a malpractice lawsuit
In Florida, you must file a medical malpractice lawsuit within two years of the date on which the harm resulting from the malpractice was — or should reasonably have been — discovered. There is also a blanket deadline of four years from the date of the alleged medical malpractice, regardless of when you actually (or when you should have) discovered the harm. How is it regulated in the Cayman Islands? What is the statute of limitations for a medical malpractice lawsuit when a plaintiff has not have been aware of the existence of the injury or of its severity within the relevant limitation period?
Auntie’s answer: This issue was in the news last year when the Health Services Authority (HSA) Law was amended to make HSA medical staff liable for damages in the carrying out of their duties if they acted negligently or in bad faith. This change resulted from a high-profile case in which the court found against a family attempting to claim damages due to negligence in the birth of their severely disabled child (see Law changed to allow medical suits).
Under the earlier law from 2013, liability was limited to acts or omissions in bad faith; the Health Services Authority (Amendment) Law, 2016 added liability for damages that were shown to be caused by negligence.
An official with the Department of Health Regulatory Services explained that one thing to look at regarding the reader’s question is the type and level of coverage of malpractice insurance a medical practitioner carries. In the situation the reader described, the policy can specify a statute of limitations on lawsuits when a plaintiff was unaware of the injury or its severity within the timeframe set out by the coverage, but the official noted that “the courts usually can make other determinations once filed with them”.
In addition, Sections 35 and 36 of the Health Practice Law (2013 Revision) (“Standards of professional practice, professional conduct and fitness to practice”) address codes of practice and punishments for infractions across the various professional disciplines. Under these sections, there is no time limit for a person to make a complaint after the alleged infraction, according to the department official. And in extreme examples of infractions, any one of the four relevant bodies (Medical and Dental Council, Nursing and Midwifery Council, Pharmacy Council and the Council for Professions Allied with Medicine) can strike a practitioner off their register.
The laws mentioned in this column can be found on the CNS Library.
Category: Ask Auntie
A more direct answer to the question posed would be: the statute of limitations for personal injury claims, including alleged medical malpractice, is three years from the date of injury or date of discovery of the injury. There is no long-stop date (such as the four year limitation the writer references in Florida). There are exceptions/extensions for minors and incompetent individuals as well.