Statute of Limitations

• 413.140 ACTIONS TO BE BROUGHT WITHIN ONE YEAR
  
  "(1) The following actions shall be commenced within one (1) year after the cause of action accrued:
  
                           *    *    *   *    *    *    *    *    *    *    *
  (e) An action against a physician, surgeon, dentist or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice.
  
                           *    *    *   *    *    *    *    *    *    *    *
  
  (2) In respect to the action referred to in paragraph (e) of subsection (1) of this section, the cause of action shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered; provided that such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred."
  
  • One year from the date first discovered or should have been discovered.
  • The italicized five-year cap in the statute has been declared to violate the open courts provisions of the Kentucky Constitution.  McCollum v. Sisters of Charity, Ky., 799 S.W.2d 15 (1990).
• Cases:
  • Hackworth v. Hart, Ky., 474 S.W.2d 377 (1971).
    Statute of limitations in action of husband and wife against physician and laboratory technician for negligence in the performance of vasectomy operation commenced to run at time husband discovered or should have discovered that the operation was not successful by his discovery that he was not sterile and that his wife was pregnant by him. 
  • Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor, Ky., 756 S.W.2d 467 (1988).
    
    Concurrence by Liebson, J.: 
    
    The statute  [KRS 413.140] provides "the cause of action [for medical negligence or malpractice] shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered." Discovery/accrual time means the point where the patient discovers that the condition (in this case a stillborn child) was not a natural event but an untoward event caused by human intervention. In this case if the facts were as claimed, the doctor's silence in failing to tell the mother that this was a normal, healthy fetus when he delayed delivery to take care of another patient, would toll the statute of limitations, but for the fact that the mother was suspicious from the beginning that the stillbirth was caused by the doctor's misconduct rather than by natural occurrence.
    
    We should make it clear that a physician has an affirmative duty, born of the physician-patient relationship, a fiduciary relationship, to disclose to his patient medical information bearing on the cause of an occurrence such as this. The patient is dependent upon the physician for information necessary to discover whether an injury has occurred. The discovery rule in  KRS 413.140(2) extends time for commencement of the running of the statute of limitations until appropriate information is provided.
  • Gray v. Commonwealth, Ky.,  973 S.W.2d 61 (1998).
    Discovery rule, which tolls running of the statute of limitations in situations where cause of action is not reasonably discoverable until plaintiff knows, or in exercise of reasonable care should know, that injury has occurred, applies to latent injury cases.
  • Conway v. Huff, Ky. 644 S.W.2d 333 (1983).
    In a legal malpractice claim, the court held the statute of limitation runs from the date the plaintiff knew or had reason to know she had been poorly represented rather than the later date when she was advised she had a legal malpractice claim.  The Court then referenced the medical malpractice law regarding accrual of a cause of action as follows:  The situation here is analogous to the "discovery" theory utilized in determining whether the statute of limitations has run in medical malpractice cases. Does the statute start to run when the surgery patient discovers the sponge or when an attorney tells the patient that legal action lies against the surgeon? Obviously the answer must be with the discovery that a wrong has been committed and not that the party may sue for the wrong. This conclusion is supported by the holdings in  Tomlinson v. Siehl, Ky., 459 S.W.2d 166 (1970); . Hackworth v. Hart, Ky., 474 S.W.2d 377 (1971); and Louisville Trust Co. v. Johns-Manville Products, Ky., 580 S.W.2d 497 (1979).
    
    

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