Medical Malpractice Minority Tolling of Statute of Limitations Opinion in Montana

On Monday the Montana Supreme Court ruled in a 5-2 decision that a father’s wrongful death medical malpractice claim on behalf of his 16 year old son was time-barred.

In Runstrom v. Allen, the plaintiff’ son sustained a broken femur in an ATV accident (I wonder if was a Yahama Rhino ATV, which has been the subject of numerous lawsuits around the country). The ambulance took him to the emergency room in Great Falls where he was treated by the defendant, an orthopedic doctor. Plaintiff’s son regrettably died the next day. Plaintiff immediately blamed the doctor and consulted with counsel but for whatever reason did not pursue a case.

Almost 4 years later, plaintiff read an article in the Great Falls Tribune reporting on an administrative proceeding against the doctor; the article referred to a peer review report and some of the doctor’s former patients, whose names had not been released to the public. Plaintiff believed that his son was one of those unnamed patients, and after reviewing the documents, filed a medical malpractice claim with the Montana Medical Legal Panel.

Montana’s medical malpractice statute of limitations reads a lot like Maryland’s. In Montana, malpractice actions alleging injuries or fatality must be brought within three years from the date of injury or from when the plaintiff first discovered the injury. Again, like Maryland, claims may not be brought after five years from the date the injury was incurred.

Accordingly, the Plaintiff’s claim would appear barred by the statute of limitations on its face. Plaintiff asserted, however, that minority polling delayed the running of the three year statute of limitations and that because his son would have lived two more years until he reached the age of 18, the SOL for his claim did not begin to run until his son had reached the age of majority.

The doctor disagreed, contending that the person at issue is not the decedent, which is how the court found.

The nuances of Plaintiff’s argument are too involved for this blog post (read: I don’t feel like breaking them down) but they are spelled out exceptionally well in William A. Rossbach’s (Rossbach Hart Bechtold, PC in Missoula) amicus brief on behalf of the Montana Trial Lawyers Association).

The Montana Supreme Court does a fantastic thing by publishing not only the opinions but all of the briefs that were submitted. You can find the Montana Trial Lawyers Association brief here and the Montana Supreme Court decision here.

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