The statute of limitations is a law created by the legislature to place a time limit on filing lawsuits. It is also something that causes many lawyers a great deal of stress. I cannot tell you how many times that I have awakened in the middle of the night and thought about some impending time limit. The time limits are especially troublesome on medical malpractice claims, which is how I spend a significant part of my time.


The time limit for suing a doctor, hospital or other health-care provider is two years unless the negligence caused the death of someone in which case the time limit is normally three years. There are all kinds of traps that lawyers must be aware of as they consider these time limits.


For example, if an injured party dies, but negligence of the health-care provider did not cause death but caused the injury, a probate estate must be opened within one year of the date of death and a lawsuit must then be filed within two years from the date of negligence. This also applies to non-medical cases such as automobile accidents and other types of injury claims. The probate estate is the party proceeding with the claim if the negligence did not cause death and the money is then distributed according to the terms of the person’s will, or if there is no will according to the laws of intestacy which are the laws which dictate how money in an estate is distributed if there is not a will.


It becomes even more complicated if the injured party is a minor, which the law considers to be anyone under the age of 18 in medical cases and 21 in other kinds of cases. Thus, you have two years after the minor’s 18th birthday to file a malpractice claim for the minor in Missouri, but for other types of claims the statute of limitations is five years. If you want to sue your doctor, you have two years from the date of negligence, but if you want to sue your lawyer you have five years. Logical? Fair? I didn’t think so.


Of course, if the Missouri General Assembly passes a law that has been proposed this year, the time limit for all cases will be two years. Thus, for the entirety of my 40-year career, the time limit for non-medical cases has been five years. The stress that is associated with medical cases will apply to all cases.


The purpose of the revisions is to limit the number of lawsuits. No one is going to convince me that this is not a bill designed by and for insurance companies and defendants in lawsuits. Of course, there is no attempt to limit the time limit for filing claims by creditors on delinquent accounts. If legislators really wanted to reduce the number of cases, they might start with those claims because there are many more creditor cases than there are injury cases.


The effect of reducing the statute of limitations on non-medical cases is that it will have the reverse effect of causing more cases to be filed. There are occasions in which lawsuits are not filed within two years. There are many occasions in which the medical treatment that occurs from injuries occurring from a car accident or other type of non-medical situation continues beyond two years.


When a case is presented in court, it is important to have a clear picture of the full extent of medical care that has occurred. There are cases in which future care is needed and is presented to a jury, but those cases are precarious because medical care has risks and it is difficult to predict what risks will occur and how the patient responds to the future care. Looking backward at what has happened is far better than trying to predict the future. Of course, those who want more restrictive time limits want to reduce the number of claims and the amounts of jury awards for damages based on incomplete information.


Another aspect of this issue is a statute of repose, which is a law that limits a manufacturer’s responsibility for its product to a certain number of years. There is no statute of repose on product liability cases in Missouri, but legislation is proposed that would limit it to 15 years. This is just an arbitrary time limit which has no legitimate rationale other than to deprive people of legitimate claims.


Sponsors claim that where too much time has elapsed it is sometimes difficult to defend such lawsuits because employees might go to work elsewhere, and records might be difficult to find. They claim the purpose of the limitation is to prevent frivolous lawsuits. That is a lame excuse. Product liability cases are very expensive to pursue, and frivolous cases are rare in this area of the law.


Legislators love to talk about frivolous lawsuits but can never identify what is frivolous. Is a lawsuit frivolous just because an unreasonably dangerous product is more than 15 years old.?


If the product is old, the manufacturer can always argue that no reasonable alternative design was available at the time. This is always an issue in these cases. Merely arguing that there are frivolous cases without citing examples of cases that are actually presented to juries seems disingenuous.


We must therefore ask if these time restrictive time limits are good for the citizens of Missouri, or are they designed to benefit insurers and manufacturers while making a bad situation for an injured person worse. If the system is not broken, don’t fix it.


Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at bbuckley@wagblaw.com.