If you think you’ve been harmed by a health care provider’s failure to meet the appropriate standard of care, you typically have the option of filing a medical malpractice lawsuit in the state courts.
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The initial hurdle in filing a malpractice suit is to prove that you have filed in a timely manner. Kentucky’s law governing the statute of limitations for medical malpractice lawsuits requires that this kind of case must be filed within one year “after the cause of action accrued.”
A cause of action accrues when the injury is first discovered or, in the exercise of reasonable care, should have been discovered.
Triggering the Statute
As do many other states, Kentucky has a so-called “discovery rule” which starts the clock on the statute of limitations once the plaintiff knew, or should have known, of the medical negligence.
This rule entails knowledge that a plaintiff has a basis for a claim before the statute of limitations begins to run. The knowledge necessary to trigger the statute is two-pronged. The plaintiff must know: (1) he has been wronged, and (2) by whom the wrong has been committed.
Tolling the Statute
In several instances, the statute may be “tolled,” which means it is put on hold or paused.
For a minor, the statute of limitations is tolled until the minor turns 18 years of age or marries. From that point on, the minor has one year within which to file a medical malpractice lawsuit.
The statute of limitations is also tolled in the following situations:
- while an injured patient is deemed to be mentally disabled, and
- while defendants who are normally Kentucky residents have left the state, have gone into hiding, or are otherwise obstructing being served with the legal complaint.
No Outer Time Limit
The Kentucky malpractice law provides that the outer time limit to file any malpractice action is five years. However, this provision was held unconstitutional by the Kentucky Supreme Court in McCollum v. Sisters of Charity of Nazareth Heath Corp.
In the McCollum case, the plaintiff had an operation on his femur, and only began to feel pain 13 years later, the result of an orthopedic screw that had been left in the tissue of his leg. Although the defendants argued that the case was being brought more than five years later, the court held that the five-year limitation infringes the Kentucky Consitution’s “open courts” provisions guaranteeing each person the right to sue for injuries.
Continuous Course of Treatment Doctrine
Even though a plaintiff who knows (or should have known) about negligent medical treatment generally must file suit within one year, the time limit can be extended if the patient received continuous treatment from the same healthcare provider. In adopting the “continuous course of treatment doctrine,” the Kentucky Supreme Court explained that “while treatment continues, the patient’s ability to make an informed judgment as to negligent treatment is impaired.”
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The rationale behind this doctrine is that if a patient continues to be treated by a physician, the patient should not be required to interrupt the treatment to bring suit simply because a statute of limitations is about to run. The trust and confidence that is a hallmark of the doctor-patient relationship puts the patient at a disadvantage to question the doctor’s techniques and allows the patient to rely on the doctor’s skill without interrupting a continuing course of treatment.
If you have suffered from a medical malpractice mistake, we encourage you to learn more about your rights and your possible recovery by contacting us as soon as possible. Kentucky court filing deadlines are rigid, and you don’t want to lose your opportunity for a full and fair financial recovery from any injury that you suffered as a result of medical malpractice.