Connecticut law dictates that for a plaintiff to timely bring an action for medical malpractice, that person must commence the lawsuit within a specific time. The facts surrounding the injury will determine how the time limit applies.
The statute of limitations for filing the lawsuit is two years. There are two possible trigger dates to begin running the time limit:
- The date the injury, or medical malpractice event, took place; or
- If the injury could not be discovered at the time it actually occurred, then on the date when the injured person learned of the injury or reasonably should have become aware of it.
The law imposes a second time limit on bringing a medical malpractice lawsuit: the “statute of repose.” This requires the plaintiff to commence the lawsuit no later than three years after the occurrence of the injury, regardless of when the plaintiff learned of the injury.
But what happens if the plaintiff cannot discover the injury during the three-year maximum time limit? Generally in such a situation, the plaintiff would be precluded from suing.
While that outcome may seem harsh, there are a few ways to effectively stretch the statute of repose beyond three years. One such way is to establish that the person or institution responsible for the injury had a continuing duty to warn the plaintiff.
There are three requirements to prove a continuing duty to warn:
- The wrongful act giving rise to the malpractice claim must have happened;
- The person who committed the wrongful act must have had a duty to continue to warn the plaintiff after it happened; and
- The person who committed the wrongful act must have breached that duty to warn.
If all three elements are shown, then the statute of repose “tolls” — that is, stops running — as long as the continuing duty to warn is breached, even if that means that more than three years pass from the date of the injury.
Proving a continuing duty to warn is not necessarily easy. Multiple cases on the subject have gone all the way to the Connecticut Supreme Court to finally decide. But if a claim would otherwise be barred by the statute of repose, it may offer an injured person a second chance to file a medical malpractice lawsuit that he or she would not otherwise have.