§657-7.3  Medical torts; limitation of actions; time.  [(a)]  No action for injury or death against a chiropractor, clinical laboratory technologist or technician, dentist, naturopathic physician, nurse, nursing home administrator, dispensing optician, optometrist, osteopath, physician or surgeon, physical therapist, podiatrist, psychologist, or veterinarian duly licensed or registered under the laws of the State, or a licensed hospital as the employer of any such person, based upon such person's alleged professional negligence, or for rendering professional services without consent, or for error or omission in such person's practice, shall be brought more than two years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, but in any event not more than six years after the date of the alleged act or omission causing the injury or death.  This six-year time limitation shall be tolled for any period during which the person has failed to disclose any act, error, or omission upon which the action is based and which is known to the person.

     [(b)]  Actions by a minor shall be commenced within six years from the date of the alleged wrongful act except the actions by a minor under the age of ten years shall be commenced within six years or by the minor's tenth birthday, whichever provides a longer period.  Such time limitation shall be tolled for any minor for any period during which the parent, guardian, insurer, or health care provider has committed fraud or gross negligence, or has been a party to a collusion in the failure to bring action on behalf of the injured minor for a medical tort.  The time limitation shall also be tolled for any period during which the minor's injury or illness alleged to have arisen, in whole or in part, from the alleged wrongful act or omission could not have been discovered through the use of reasonable diligence. [L 1973, c 92, §1; am L 1976, c 219, §17; am L 1977, c 167, §14; gen ch 1985; am L Sp 1986, c 2, §15; am L 2010, c 4, §9]


Case Notes


Claims against doctors were not barred by the statute of limitations; the statute of limitations defense was waived at the time the claims were removed from the medical claim conciliation panel.  299 F. Supp. 2d 1131 (2003).

  Statute of limitations begins to run the moment person discovers or should have discovered the negligent act, the damage, and the causal connection.  65 H. 84, 648 P.2d 689 (1982).

  Distinguished from "general" personal injury statute of limitations of §657-7.  73 H. 578, 837 P.2d 1247 (1992).

  An expert opinion validating the legal basis for a claim is not required in order to trigger running of statute of limitations under this section; section also does not require the procurement of a favorable expert opinion before a cause of action accrues.  89 H. 244, 971 P.2d 717 (1999).

  For a cause of action to accrue and the statute of limitations to commence under this section, legal knowledge of defendant's negligence is not required; thus, plaintiff's cause of action accrued when plaintiff had discovered that stroke was caused by defendant's inadequate administration of medication.  89 H. 244, 971 P.2d 717 (1999).

  The two-year limitation begins to run when plaintiff discovers or should have discovered the damage, the violation of the duty, and the connection between the violation of the duty and the damage.  1 H. App. 519, 622 P.2d 613 (1981).

  Where questions of whether plaintiff should have, using reasonable diligence, discovered the negligence more than two years before filing suit, and whether plaintiff relied on actions by defendants in not pursuing plaintiff's claim were in dispute and thus were matters for the trier of fact to decide, trial court erred in granting summary judgment for defendants.  112 H. 336 (App.), 145 P.3d 879 (2006).