The essential elements and other important aspects of medical malpractice are addressed elsewhere in this volume. Malpractice cases involving minors are different in just a few important respects that will be addressed here.

The statute of limitations in malpractice cases involving minors is an extremely important issue. Every state has a statute of limitations for malpractice cases. Generally, a statute of limitations declares that no suit shall be maintained unless brought within a specified period of time after the right accrued. For adults this period is usually 2 or 3 years.

Consider this hypothetical. Dr. Smith failed to immobilize a C-Spine dislocation on January 4, 1990 in Chicago, Illinois. The patient was taken to radiology, had flexion and extension views, with resulting quadriplegia. At the moment the neurologic injury occurred the patient accrued the right to sue Dr. Smith. Illinois has a 2-year statute of limitations. Therefore, the patient has until midnight January 3, 1992 to file a claim against Dr. Smith. After that he has lost his right to sue.

In cases involving a minor, in several states, the statute of limitations is extended through the age of majority plus 2 or 3 years. For example, in Alaska, if our C-Spine patient was 10 years old at the time of the injury, the statute of limitations would not run out until the child was 20 years old (age of majority plus 2 years). Over half the states use the age of majority plus 2 or 3 years. Other states use some age less than majority, and yet others use the same statute of limitations for both minors and adults. Consider the possibility that meningitis may be missed when a child is one month of age, and the lawsuit could be filed over 22 years later!

The other important issue is that of damages in the malpractice suit involving a minor. Damage awards can be particularly large in such cases. The damage award typically addresses compensation of the parents for their added costs and foregone parental income associated with the extra care that a negligently injured child may require. Second, if the child sustains permanent injuries, he can usually recover whatever additional expenses can be associated with his injuries for the rest of his life, whether the damages are simply a small amount of foregone income or permanent institutionalization.