AAOS Bulletin - October, 2006

Medical-legal terms defined: Statute of limitations

By Douglas W. Lundy, MD

The law known as the “statute of limitations” is often misunderstood, especially in medical liability claims. The statute of limitations is generally the time limit for suing in a civil case and is based on when the injury occurred or was discovered.1 These time limits vary by state and are typically enacted by the state legislatures.

Because statute of limitations laws are frequently challenged, many exceptions have been recognized. For example, someone who was unfairly restricted from asserting a right or was unaware of being a victim of negligence may have more time to seek justice than someone who simply fails to prosecute a claim.

Historically, statutes of limitation were designed to promote justice by preventing surprises through the revival of claims.2 If cases could be initiated well after the act of negligence occurred—when much evidence, as well as the memories of witnesses, was lost—the integrity of the justice system suffered.

This gave rise to the “Doctrine of Laches,” which applies to delayed litigation. Under the “Laches” doctrine, the defendant could claim that the plaintiff purposely waited an unreasonable period of time before bringing the case, thus hampering the possibility of a successful defense.

Starting the clock
When does the time afforded by statute actually begin to accrue? In medical liability claims, there are typically four different possibilities for when the clock starts:

  • When the alleged negligent act or omission occurs
  • When the injury actually occurs, which may not be the same as when the alleged act of negligence occurred
  • When the injury was discovered or when it should have reasonably been discovered (For example, a sponge left in a patient may not be discovered until a significant amount of time later.)
  • When the treating physician completes his or her treatment of the patient

In Colorado, for example, the statute of limitations requires medical negligence claims to be filed within two years of when the injury occurred or when it should have been known.3 A plaintiff in a case of wrong-site surgery would likely have two years to file a claim while a plaintiff with a retained sponge may have a longer period, because the sponge may not be detected until later.

The statute of repose
The statute of repose differs from the statute of limitations in that it limits the time within which a plaintiff may bring action, regardless of when the injury is known. In Colorado, the statute of repose is three years, and that “clock” begins to run when the act or omission giving rise to the action occurs. In theory, then, no case may be brought against a physician three years after the physician has stopped treating the patient.

There are exceptions to both the statute of limitations and the statute of repose. Colorado has four exceptions—two dealing with the discovery of the act and two involving the status of the patient. First, if an unauthorized foreign object is left in a patient and is not discovered with reasonable diligence, the plaintiff may still file within two years of its discovery.4 Second, if the physician knowingly conceals the act of negligence, the patient has two years to bring a claim against the physician once the negligent act is discovered or should have been reasonably discovered.

Colorado law also states that children younger than age six have until age eight to bring a case against the treating physician if they are represented by a court-appointed legal guardian at the time the alleged negligence occurs. Even parents must be officially appointed by the court as guardians.5

Colorado law also has a special exception for disabled persons. A disabled person is a minor younger than 18 years of age, a person who is mentally incompetent, or a person with any other legal disability who does not have a legal guardian. When a child turns 18 years old, the disability status legally terminates, and the statute of limitations begins to run. The purpose of this exception is to protect people who are incapable of asserting their rights. However, if the disabled person has a legal guardian at the time the right accrues, or if a legal representative is appointed at any time after the right accrues and before the disability ends, the applicable statute of limitation will run against that representative.

How the statutes work
Because the law varies among states, orthopaedic surgeons should familiarize themselves with the statute(s) of limitations that apply to the state(s) where they practice. The following examples are all based on Colorado state law.

For a case of wrong-site surgery, the “clock” on the statute of limitations starts immediately after the procedure when the supposed negligent act is recognized. However, if a surgeon leaves a sponge in a patient’s pelvis during open reduction of an acetabular fracture, the “clock” only begins to run once the patient knows or should have known by the exercise of reasonable diligence that a sponge was left. If the surgeon withheld the fact of the retained sponge, the patient would have two years to file suit once he or she learned or should have learned of the sponge’s presence.

Another example might be the failure to remove the trial acetabular liner during a total hip arthroplasty. This might not be discovered until revision surgery was required and the only protection for a surgeon would be the time limit in the statute of repose.

If a surgeon commits a negligent act when operating on a two-year-old child, the child’s legal guardians have until the child’s eighth birthday to file suit against the physician. If the child did not have a legal guardian to bring the case on his or her behalf, the statute of limitations would not begin until the child turned 18 years old.

Statutes of limitations can be complicated because of the many exceptions, the differences among states, and the difference between medical liability and other acts of negligence. Physicians should understand their state’s statute of limitations and statute of repose as well as other medical liability laws.

Orthopaedic surgeons should disclose information concerning unexpected outcomes and document this disclosure in the medical record. Under no circumstances should an orthopaedic surgeon knowingly withhold information from patients. Open, humble, candid discussion of adverse outcomes—combined with active partnering with the patient to develop a course of action—may deter litigation and can result in a “win-win” scenario for all involved.

Douglas W. Lundy, MD, FACS, is a member of the AAOS Medical Liability Committee.


  1. Black’s Law Dictionary 1422 (Bryan A. Garner ed., 7th ed., West 1999).
  2. Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-349, (1944).
  3. C.R.S. 13-80-102.5.
  4. C.R.S. 13-80-108(1), Austin v. Litvak, 682 P.2d 41 (Colo. 1984).
  5. Hane by and through Jabalera v. Tubman, 899 P.2d 332 (Colo. App. 1995).

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