|
|
|
|
 |
01/01/2007 LIMITATIONS PERIODS FOR THIRD-PARTY CLAIMS IN MEDICAL MALPRACTICE ACTIONS By: Aaron P. Ryan, J.D. When a healthcare provider is named as a defendant in a lawsuit, consideration should always be given to whether that defendant may seek contribution or indemnity from others involved in the care at issue. Such claims may be made through a cross-claim against a co-defendant or by bringing a third-party action against any potential defendants not named in the plaintiff’s action. There are, of course, individualized ethical and political considerations that a healthcare provider and its attorneys must each assess in making such third-party decisions. This article focuses, not on the advisability of such actions, but on the time constraints in which that decision must be made. Illinois law provides that any action against a healthcare provider, whether arising out of tort or breach of contract “or otherwise,” must be commenced within two years of discovering the alleged negligence (statute of limitation), but in no event more that four years after the care at issue was provided (statute of repose). 735 ILCS 5/13-212. The same limitations periods apply to claims for contribution or indemnity predicated on medical malpractice. 735 ILCS 5/13-204(e). See Hayes v. Mercy Hospital and Medical Center, 136 Ill.2d 450 (1990). In medical malpractice cases, the healthcare provider has no reason to contemplate filing a cross-claim or third-party action for contribution or indemnity against anyone until such time as it is itself named in a lawsuit, thus arguably triggering the discovery rule as of the date of filing and/or the date of actual service in that underlying suit. See Hayes, supra; Bradley v. Sandoz Nutrition Corp., 274 Ill.App.3d 381 (1st Dist. 1995). In such a situation, the statute of limitation for the cross-claim or third party action begins to run as of the date of filing and/or service, and must be filed within two years thereafter. Because Illinois case law references both date of filing and date of service in the underlying action as trigger dates for the discovery rule, it is safest to simply use the date of filing for determining when any cross-claim or third-party action must be filed to avoid a possible motion to dismiss that action as untimely. Guzman v. C.R. Epperson Construction, Inc., 196 Ill.2d 391, 401 (2001); Bradley, supra, 274 Ill.App.3d at 385. Litigants must be mindful, however, that this two-year limitations period for filing cross-claims and third party actions can be foreshortened by the four-year statute of repose. Hayes, 136 Ill.2d at 456. The following examples will demonstrate how this can occur: Example No. 1: If alleged medical negligence occurred on October 1, 2000, and the underlying complaint is filed on September 28, 2002, then the defendant healthcare provider would have two full years from the date of filing (until September 28, 2004) to file its cross-claim or third-party action. Example No. 2: If, however, the alleged negligence occurs on October 1, 2000, but the underlying plaintiff successfully invokes the discovery rule and does not file a complaint until September 28, 2003, then two years from the date of filing would be September 28, 2005. The statute of repose for any cross-claim or third-party action still expires four years from the date of the alleged negligence, however, on October 1, 2004. Therefore, the healthcare provider sued on September 28, 2003, has only one year, until October 1, 2004, to file a cross-claim or third-party action. In medical malpractice actions brought on behalf of a minor, the Illinois Supreme Court has held that the eight year statute of repose, as set forth in 735 ILCS 5/13-212(b), also applies to defendant healthcare providers for determining whether their cross-claims and/or third-party actions are timely filed. Antunes v. Sookhakich, 146 Ill.2d 477 (1992). A healthcare provider contemplating a cross-claim or third-party action is still subject to the two-year discovery rule, but the repose period is eight years instead of four. Example 1: If a minor injured at birth on October 1, 2000, files suit on September 28, 2005, the defendant healthcare provider has only two years, until September 28, 2007, within which to file suit, even though the eight-year repose period will not expire until October 1, 2008. Example 2: If a minor injured at birth on October 1, 2000, files suit on September 28, 2007, the repose period for any cross-claim or third-party action still expires eight years from the date of the alleged negligence, on October 1, 2008. Therefore, the healthcare provider sued on September 28, 2007, has only one year, until October 1, 2008, to file a cross-claim or third-party action. As demonstrated above, the combination of the discovery rule and the statute of repose can result in a healthcare provider having little or no time in which to file a cross-claim or third-party action. Thus, it is critical for a healthcare provider and its attorneys to quickly assess how much time, if any, it has to explore and investigate possible cross-claims and/or third-party actions before such an action is barred by the expiration of the statute of limitations/statute of repose. -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
|
