Jamie Fast lost her viable unborn son. She attributed the loss to an alleged failure by her health care providers to timely recognize and act upon the risk she would develop gestational diabetes.
The Fasts sued for the mom’s own personal injury claim, and for a wrongful death claim for the loss of her baby. The lawsuit was filed more than three years after the death of the unborn son. This would normally be too late under the statute of limitations. However, the Fasts argued that the statute of limitations was tolled under medical malpractice statutes by their request for mediation. The health care providers moved to dismiss.
The trial court held that the medical malpractice statute of limitations, and the tolling triggered by a mediation request under medical malpractice statutes, does not apply to wrongful death claims. The trial court also held that the Fasts had failed to comply with a requirement to present a claim to public entities before filing suit. The trial court dismissed both the mom’s personal injury claim, and her unborn son’s wrongful death claim. The Fasts appealed.
The Court of Appeals upheld dismissal of the wrongful death claim, citing a previous appellate opinion directly on point. The Court of Appeals reversed dismissal of the personal injury claim, accepting the argument that the Fasts’ failure to timely present a pre-litigation notice of claim was caused in part by the hospital’s failure to comply with statutory mandates to make publicly available a claim form and instructions for presentation of the claim form.
Whether the Fasts would have prevailed on the wrongful death claim will never be known.
A claim—no matter how meritorious—is lost forever once the statute of limitations runs. If you have any personal injury or wrongful death claim you should consult with an attorney as early as possible. A delay may prevent you from ever being able to pursue the claim—no matter how deserving the claim may be.