July 29, 2013
Naccache v. Taylor, — A.3d —, 2013 WL 3820942 (D.C. 2013)
The DC Court of Appeals has ruled last week that the laches defense does not apply in actions for medical malpractice. The Court reasoned that laches is only available in equity proceedings but not in actions at law. For actions at law, held the Court, the applicable time bars are set by the statute of limitations. This statute, the Court explained, accounts for all relevant tradeoffs between plaintiffs’ and defendants’ interests. Hence, “To import laches as a defense to actions at law would [improperly] pit the legislative value judgment embodied in a statute of limitations … against the equitable determinations of individual judges.” In making this ruling, the Court also took notice of the fact that forty-eight states bar laches as a defense for actions at law.
This ruling appears impeccable, but it has a wrinkle.
Every statute of limitations has two components: the time bar and the tolling mechanism. The laches defense cannot shorten the statutory window for filing a suit: that would run against the legislature’s expressed intent. But there might be a room for integrating laches within the tolling mechanism. Conceptually, this mechanism is grounded in equity, similarly to the laches defense: see, e.g., Albright v. Keystone Rural Health Center, 320 F.Supp.2d 286 (M.D. Pa. 2004). Using laches to deny tolling therefore would not create the law-equity mismatch that the Court feared about. Substantively, by reviving a dated claim, tolling often creates a risk of injustice for defendants who face stale evidence of misconduct. Arguably, these defendants need to be protected by the laches defense. As the Supreme Court put it, “Statutes of limitation, like the equitable doctrine of laches … are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49 (1944).
The case adjudicated by the DC Court of Appeals illustrates this point vividly. In that case, the Court dismissed an appeal from a $6.5 million malpractice judgment against an obstetrician. The obstetrician was sued by the plaintiff nearly twenty years after the alleged malpractice. The plaintiff filed the suit on behalf of her son who was entitled to toll the three-year limitations period due to his minorship and mental disability (DC ST. § 12-302(a)(1)&(2)). The plaintiff alleged that in the Spring of 1987, when she was pregnant with her son, the defendant failed to give her antibacterial medications following her urine tests that showed a significant level of bacteria: 2+ on a 4-point scale. As a result, she developed severe cramping, early contractions, and other complications. The plaintiff’s son was born prematurely while suffering from infection, seizures, oxygen deprivation, underdeveloped lungs, brain hemorrhaging, and brain damage. As a result, he developed cerebral palsy and retardation.
Expectedly, the key evidence in this case was the plaintiff’s medical records. Alas, several years before the trial began, the defendant’s clinic had shredded those dated records pursuant to DC’s document-retention guidelines. The only available records were the documents that the plaintiff’s attorneys received from the clinic back in 1990. Critically, those documents presented a paradigmatic example of stale evidence. The lab report of the plaintiff’s urine culture that the defendant ordered in March 1987 was not among those documents. Absence of this report could improperly lead to the jurors’ inference that the defendant had never received and, consequently, never seen it (see Stephen A. Saltzburg, A Special Aspect of Relevance: Countering Negative Inferences Associated with the Absence of Evidence, 66 Cal. L. Rev. 1011 (1978)). For obvious reasons, this inference was devastating to the defendant’s case. The laches defense could have given the defendant full protection against this unwarranted inference, but as we just saw, the DC Court of Appeals ruled against this defense.
The Court reassures us that the trial judge “consistently protected [the defendant] before, during, and at the end of trial from any adverse inference that the lab report’s absence from the medical records could serve as a basis to conclude that [he] never saw it.” This protection included the judge’s instructions to the plaintiff’s counsel and the jury. Specifically, the judge prohibited the plaintiff’s counsel from suggesting to the jury that the absence of the urine culture lab report supported the theory that the defendant never reviewed it.
This brings me to a 6.5 million dollar question: did this protection actually work?