The Washington Supreme Court ruled recently that the statute of limitations that is applied to medical malpractice is not applicable in cases involving children. The court agreed 7-2 this month that the statute of limitation laws in the state is unfair to children because they rely on the parent or guardian of the child to seek the claim. When a child is an adult, they should be able to decide for themselves if they have been a victim of medical malpractice and whether or not to pursue legal action.

The case in question involves a 19-year-old named Jaryd Schroeder. Courthouse News Service reports that when he was nine years old Schroeder suffered from an unknown condition with symptoms that included nausea, dizziness, double vision, headaches and weakness in the legs. He was taken to the doctor and an MRI test was performed. His doctor, Dr. Stephen Weighall of Columbia Basin Imaging, found the results to be normal and a cause for his symptoms was not determined.

Eight years later, 17-year-old Schroeder saw another doctor who performed the second MRI. This time, the doctor found that the cause of Schroeder's symptoms was the fact that his brain was protruding into his spinal canal. After this discovery was made, Schroder sued his former doctor, Weighall, as well as Columbia Basin Imaging for medical malpractice. In response, their attorneys argued that the claim should be dropped due to the fact that the statute of limitations had expired and the state court agreed to the dismissal.

Schroeder appealed the decision directly to the Supreme Court arguing that the basis of the statute of limitations “violated the equal protection rights of children under the Washington Constitution.” The Washington Supreme Court ruled that the lawsuit could be filed because the statute of limitations was unfair. Justice Sheryl Gordon McCloud wrote that these laws are unfair for children, especially those in the foster care system or children with parents who are unconcerned for their welfare. She states that:

"The law places a disproportionate burden on the child whose parent or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf,"

In New Hampshire, the statute of limitations for a medical malpractice case is 2 years. However, it was found to be unconstitutional during the 1980 case Carson v. Maurer. The general statute of limitations that is applied to medical malpractice cases is actually 3 years because that is the law for personal injury and wrongful death cases. There is also a discovery limitation that states that the statute of limitations does not apply as rigidly to cases that take several years to discover that malpractice occurred.

There is no caveat for medical malpractice cases involving children in New Hampshire. This Washington Supreme Court decision may be an important one in establishing this law. If the child is a victim of medical malpractice, they will be unable to act on their own until adulthood if their parent or guardian is unconcerned with pursuing legal action.