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The statue of limitations in a medical malpractice case does not always apply to a minor. If your medical malpractice case involves a minor you need to be careful that the lawyer you hired will comply with the notice requirements in the Tort Claims act. A minor may be excused from the notice requirements in the Tort Claims Act because the notice provisions violate due process as to a minor.
The notice requirement does not apply to those “too young to comply.” Whether a minor can comply with the notice provision is a question of fact that is dependent on the minor and the circumstances. A person specifically hired or appointed to represent the child (such as an attorney or guardian ad litem), however, may trigger a need for the minor to comply with the notice provisions. The notice requirement is also subject to the discovery rule which means the patient (or their representative) must provide a tort claim notice when they “know or with responsible diligence should have known of the injury and its cause.” If, for example, the patient does not learn of the malpractice and even with reasonable effort the patient could not have learned of the malpractice before the notice deadline has expired, then the patient can still provide notice and sue the hospital after the ninety days or six months has passed from the date of malpractice. Further, the doctrine of fraudulent concealment may apply to the notice requirement.
Fraudulent concealment or equitable estoppel is a judicially created doctrine provides that if the defendant “prevented the plaintiff from bringing suit within the statutory period should be estopped from asserting the statute of limitations [or notice] defense.” To establish fraudulent concealment, the patient has the burden of showing: “(1) that the physician knew of the alleged wrongful act and concealed it from the patient or had material information pertinent to its discovery which he failed to disclose, and (2) that the patient did not know, or could not have known through the exercise of reasonable diligence, of his cause of action within the statutory period.” In other words, if the doctor, for example, knew that she/he committed malpractice or information that may discover the malpractice, but did not share that information with the patient and the patient did not know of that information and could not of known of that information, then the doctor will not be able to assert the statute of limitations defense. The notice must be in writing “stating the time, place and circumstances of the loss or injury.”
The notice must also inform the government entity that the patient or representative may file a lawsuit because of the injury or death. The Tort Claims notice must be sent to one of the following individuals depending on who the claim is against: State of New Mexico: Risk Management Division Municipality (City): Mayor School District: Superintendent of the School District County: County Clerk Local Public Body: Administrative Head In addition to written notice, a New Mexico government entity can be sued if the entity receives “actual notice” within the proscribed time period. Actual notice requirement is met when the governmental entity knows that it may be subject to a lawsuit for a particular malpractice act. The government agency at fault must have “actual notice” not just any government agency.
It is not necessary that the agency receive specific words that it will be sued; it sufficient if that it could be reasonably inferred that a lawsuit my arise based on the information the government agency possesses. In a medical malpractice case, for example, “actual notice” could include peer review by the hospital staff or even medical records showing malpractice occurred.
If you need help with a medical malpractice case and you are unsure of whether your case will fall under special circumstances regarding the statue of limitations reach out to our office at (505) 242-7200. This information is here to help you better understand the process of medical malpractice cases so that you and your lawyer can successful file a claim and potentially win your case.
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