Definition/explanation of statutes of limitation
Statutes of limit are laws establishing a time limit within which judicial actions or rights must be enforced; failure to which the parties concerned will be barred from enforcing them. The length of time in the statutes depends on the field and therefore varies.
In the event of medical malpractice, some of the statutes of limit period are determined by certain events such as the discovery of the injury than its cause (Health Grades, 2009). A patient may suffer an injury following negligence of governing standards of care by the practitioner while the patient is undergoing treatment. However, such malpractice may be caused by an action by the practitioner rather than negligence. Patients can take actions against licensed health care providers or individual practitioners, after they have been violated through a medical malpractice. Included in the list of these people who may face action against them are the psychotherapists, psychologists and counselors.
The actual statute in two states – similarities and differences
For the case of those aged four years and older, the Montana regulation allows a statute of limitations of 3 years from the reasonable date of discovery to a maximum of five years following the date of act or omission giving rise to the claim. For those who are aged less than four years, Montana imposes a statute of the limitation in the minor’s eighth birthday. In comparison, Alaska sets a limit of two years from the date the person discovers or should have discovered the existence of the cause of action, for the commencement of medical malpractice actions. For the cases of malpractices against minors in the aforementioned state, the case must be filed within two years plus one day of his or her birthday or within two years of the date of the minor’s marriage. A minor in Alaska can be married at the age of 14 if there is an approval by the court.
There exist differences among states relating to the limit amounts of damages to injuries. In Alaska, the amount of damage for most injuries is fixed at $400,000. An amount of $500,000 or three times compensatory damages is fixed as a limit for punitive damages. In comparison, Montana regulation offers a limit on malpractice damage of $250,000 for non-economic damages (Aaron, 2004).
Caps on recovery of damages by patients
Patients at Alaska may recover their malpractice claims through arbitration, if the health care wishes to do so, through contracts between the two. Such arbitrations however cannot be made prerequisite to receipt of care or treatment. Each malpractice action case is reviewed by an appointed advisory panel of experts who responds within thirty days of its selection. Such a panel would not be important if the parties are to settle at arbitration, or when the court waivers the requirement of the panel. In Alaska, in case of joint and several liabilities, each defendant is liable for the amount of judgment for malpractice cases only to the extent of the defendant’s percentage of fault. In Montana, the defendants who are found 50% or less at fault for the plaintiff’s injuries are not held responsible in case of joint liability (Aaron, 2004).
In both states, there is an allowance of expert witnesses, but unlike in Alaska where such must be trained and certified in the defendant’s specialty (and certified by a board recognized in Alaska state), there are no special requirement for them in Montana.
Both states also have similar regulation on traditional collateral source rule where a defendant is not allowed to seek reduction of liability of the aforementioned rule, by introducing evidence of reception of compensation by the plaintiff, from other sources such as the latter’s own insurance coverage.
However, a difference exist where at Montana, a court would impose a mandatory offset for collateral source payments if the award exceeds $50,000, but in Alaska the defendant may win the offsetting of the damages by introducing evidence of collateral source payments (Aaron, 2004).
References
Aaron, L. (2004). Montana Medical Malpractice Law-An overview.Web.
Health Grades (2009). Statue of Limits. Web.