Abstract

In the 1970s a crisis occurred in the medical malpractice insurance industry. As tort law began to favor plaintiffs, the number and severity of medical malpractice claims increased. Insurance companies inundated with a deluge of claims correspondingly increased their premiums or pulled out of the malpractice insurance industry all together. Some physicians were unable to obtain medical malpractice insurance and others were faced with as much as a 300% rise in insurance premiums. As a result, the medical profession urged states to enact medical malpractice tort reform. Some states’ tort reform included legislation such as award caps, collateral source offset, and the enactment of more stringent and shorter statutes of limitation and repose. Statutes of limitation date back to early Roman law. The first statute of limitations appeared in English jurisprudence with the enactment of the Limitation Act of 1623. During the late nineteenth century, American courts accepted statutes of limitation as vital to societal welfare because they put defendants on notice to defend against suits within a reasonable period, before claims grew stale and memories dim by the passage of time. While many courts were well aware of the conditions in the 1970s that spawned reform in statutes of limitation and repose, they yet chafed under the draconian effect of the new legislation. Courts were faced with extinguishing, on motions for summary judgment, the valid claims of injured plaintiffs based on an arbitrary number. Courts are uncomfortable with the inherently arbitrary character of statutes of limitation and repose. As some scholars have observed, "Evidence does not deteriorate overnight, and society’s interest in promoting repose is only marginally greater on day two than it was on day one." Justice Jackson once stated, "Their operation does not discriminate between the just and the unjust claim, or the voidable or unavoidable delay. They have come into the law not through judicial process but through legislation." Consequently, many Courts found ways of construing statutes of limitation to favor plaintiffs including varying interpretations of when such statutes of limitation accrue. In addition, Courts have adopted exceptions to these statutes such as the continuing treatment doctrine, the foreign object exception, and discovery rules among others. As Horace G. Wood, a 19th century proponent of statutes of limitation stated: Laws of limitation are to be encouraged; yet, as they are acts which take away existing rights, they should always be construed with reasonable strictness, and in favor of the rights sought to be defeated thereby, so far as is consistent with their letter and spirit. This paper addresses the history leading up to and including the tort reform of the 1970s and 1980s; the arguments for and against statutes of limitation and repose; the points at which statutes of limitation may accrue or may be tolled; and compares the various statutes of limitation and repose in several jurisdictions to the evolving interpretation of Georgia’s statute of limitations and repose.

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