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Children’s Malpractice Cases Duck Time Limits

(CN) - Statutes of limitations are not applicable to medical malpractice cases involving minors because they place an unfair burden on children, the Washington Supreme Court ruled.

When Jaryd Schroeder was 9 years old, he suffered from double vision, headaches, dizziness, nausea and weakness in his legs. Dr. Stephen Weighall of Columbia Basin Imaging conducted a MRI test and found it to be normal.

Eight years later, Schroeder had another MRI that showed his brain was protruding into his spinal canal.

Just before his 19th birthday, Schroeder sued Weighall and Columbia Basin Imaging for medical malpractice. Weighall argued that the claim should be barred by the statute of limitations. A state court judge court agreed and dismissed the case.

Schroeder appealed directly to the Washington Supreme Court, challenging the statute of limitations on the basis that it violated the equal protection rights of children under the Washington Constitution.

The en banc court agreed, 7-2, on Thursday and revived Schroeder's case.

"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," Justice Sheryl Gordon McCloud wrote for the majority. "Courts in numerous other jurisdictions have recognized this problem, noting that statutes analogous to [the law in question] have the greatest impact on children in the foster care system, children whose parents are themselves minors, and children whose parents are simply unconcerned."

Justice James Johnson noted in dissent that the statute of limitations was put into place during 2006 legislative reform aimed at curbing excessive medical malpractice lawsuits.

"It goes without saying that the longer the gap between the act, omission or injury and the filing of the lawsuit, the more likely it is that memories will fade, records will be misplaced and witnesses will go missing," Johnson wrote. "Stale claims increase costs associated with litigation - costs that are ultimately passed on to patients."

Justice Susan Owens joined Johnson's dissent.

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