In December of 2012 the Court of Appeals of Kentucky heard a case involving the parents of a minor child who had died. (See Potter v. Boland, M.D., 2012 WL 6061730 (Ct. App Ky.)). The appellate court held that a one-year statue of limitations did apply to the claims for loss of consortium and that the one-year statute of limitations began to run when the child died absent certain evidence. Id.
The sick child who died in this case was nine years old when she died. She was taken to the hospital on March 21, 2009 with acute distress and excruciating headaches. She was discharged the following day. She then returned on March 24th again complaining of headaches. She was admitted and diagnosed with acute encephalomyelitis and unfortunately died on March 27, 2009. Id. Almost two years later an administrator was appointed and on March 25, 2011 a complaint against Kosair and ten physicians was filed alleging wrongful death and loss of consortium. The defendants filed motions to dismiss as the Kentucky wrongful death personal injury lawsuit was filed after the one-year statute of limitations. The motions were granted. This Kentucky personal injury appeal followed.
The one-year statute of limitation for wrongful death was upheld as was the loss of consortium claim which alleged medical malpractice in that it fit squarely within the period of limitations set forth in KRS 413.140 which was one year. Id.
A loss of consortium claim is not “specifically a part of a wrongful death claim under Kentucky law.” (cites omitted). A “loss of consortium action can continue even when the injured spouse or the estate has settled or otherwise been excluded from an action, because there is not a ‘common and undivided interest’ in the spouse’s claim for loss of consortium and the underlying tort claim.” (cites omitted).
Once the child was dead, the parents had a duty to investigate and see if there was any medical negligence that may have caused the death of their child. Thus, they only had a one year statute of limitation. “Under the ‘discovery rule,’ a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” (cites omitted).
If you have been the subject of a Kentucky personal injury wrongful death case, please call and speak to a Kentucky personal injury wrongful death lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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