§657-7.3  Medical torts; limitation of
actions; time.  No action for injury or death against a chiropractor,
clinical laboratory technologist or technician, dentist, naturopath, nurse,
nursing home administrator, dispensing optician, optometrist, osteopath,
physician or surgeon, physical therapist, podiatrist, psychologist, or
veterinarian duly licensed or registered under the laws of the State, or a
licensed hospital as the employer of any such person, based upon such person's
alleged professional negligence, or for rendering professional services without
consent, or for error or omission in such person's practice, shall be brought
more than two years after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the injury, but in any event not
more than six years after the date of the alleged act or omission causing the
injury or death.  This six-year time limitation shall be tolled for any period
during which the person has failed to disclose any act, error, or omission upon
which the action is based and which is known to the person.



Actions by a minor shall be commenced within
six years from the date of the alleged wrongful act except the actions by a
minor under the age of ten years shall be commenced within six years or by the
minor's tenth birthday, whichever provides a longer period.  Such time
limitation shall be tolled for any minor for any period during which the
parent, guardian, insurer, or health care provider has committed fraud or gross
negligence, or has been a party to a collusion in the failure to bring action
on behalf of the injured minor for a medical tort.  The time limitation shall
also be tolled for any period during which the minor's injury or illness
alleged to have arisen, in whole or in part, from the alleged wrongful act or
omission could not have been discovered through the use of reasonable
diligence. [L 1973, c 92, §1; am L 1976, c 219, §17; am L 1977, c 167, §14; gen
ch 1985; am L Sp 1986, c 2, §15]



 



Case Notes



 



  Claims against doctors were not barred by the statute of
limitations; the statute of limitations defense was waived at the time the
claims were removed from the medical claim conciliation panel.  299 F. Supp. 2d
1131.



  Statute of limitations begins to run the moment person
discovers or should have discovered the negligent act, the damage, and the
causal connection.  65 H. 84, 648 P.2d 689.



  Distinguished from "general" personal injury
statute of limitations of §657-7.  73 H. 578, 837 P.2d 1247.



  An expert opinion validating the legal basis for a claim is
not required in order to trigger running of statute of limitations under this
section; section also does not require the procurement of a favorable expert
opinion before a cause of action accrues.  89 H. 244, 971 P.2d 717.



  For a cause of action to accrue and the statute of
limitations to commence under this section, legal knowledge of defendant's
negligence is not required; thus, plaintiff's cause of action accrued when
plaintiff had discovered that stroke was caused by defendant's inadequate
administration of medication.  89 H. 244, 971 P.2d 717.



  The two-year limitation begins to run when plaintiff
discovers or should have discovered the damage, the violation of the duty, and
the connection between the violation of the duty and the damage.  1 H. App.
519, 622 P.2d 613.



  Where questions of whether plaintiff should have, using
reasonable diligence, discovered the negligence more than two years before
filing suit, and whether plaintiff relied on actions by defendants in not
pursuing plaintiff's claim were in dispute and thus were matters for the trier
of fact to decide, trial court erred in granting summary judgment for
defendants.  112 H. 336 (App.), 145 P.3d 879.