Public Health Law Map - Beta 5 - Medical and Public Health Law Site

anyone who pays the search fee. An unscrupulous investigator may also use
contacts in various businesses to obtain private information, such as banking and
phone records. The investigator will talk to potential witnesses, persons who know
the defendant, employees of the defendant (unless forbidden by state law), and
anyone who can provide information about the incident. If there are medical records
involved, the attorney will request copies or will examine the original in person.
The attorney may hire an expert to evaluate the information to determine if it
supports the plaintiff’s case.
b) Statute of Limitations
The plaintiff has a fixed period of time to file the claim in civil cases. This is called
the statute of limitations. In many states, medical malpractice cases must be filed
within 2 years. Perhaps the longest statutes of limitations are in certain types of
conspiracy cases. Private cases brought under the Racketeering Influenced Corrupt
Organizations Act (RICO) laws can involve incidents back 10 years. Any claim
filed after the statute of limitations has run will be dismissed.
In many cases, the plaintiff does not know about the negligence at the time it
occurs. For example, if a surgeon leaves a pair of forceps in the patient, the patient
might not know about it for months or years. In other cases, the patient cannot
know until some other condition occurs, such as Rh sensitization that might not
show up until the patient is pregnant again. Toxic exposure cases pose the problem
of whether the statute runs from when the victim was exposed, or when the disease
occurs. To avoid injustice in these cases, the courts developed the discovery rule,
holding that the statute of limitations would not run until the patient knew, or
should have known, of the injury. [Gaither v. City Hosp., Inc., 487 S.E.2d 901 (W.
Va. 1997)] Many states, however, have abolished the discovery rule as part of tort
reform. In one case under these tort reform rules, a gynecologist did a PAP smear
on a patient and told her she would be informed if the test was abnormal. The test
did come back abnormal, but the physician’s office staff filed it without telling the
physician. Four years later she had a pelvic examination and was found to have
stage IIb cancer of the endocervix. The court ruled that the statute of limitations
had run and the plaintiff’s complaint must be dismissed, even though there was no
way for the plaintiff to have known of the negligence.
3. Pretrial Settlements
Many cases are settled before any legal claim is filed or a trial is held. Settlements
are driven by the strength of the plaintiff’s or prosecutor’s case, the potential cost of
the litigation, the possible adverse publicity from a public airing of the dispute, the
potential risk of loss in court, and each party’s concern with resolving the dispute
quickly. The terms of many settlements, both private and criminal, include
confidentiality agreements that reduce or eliminate the defendant’s public relations
problem. This can be a powerful settlement tool if the defendant will suffer from the
adverse publicity even if ultimately found innocent. There are financial incentives for
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