In preparing to defend the medical malpractice case at trial, it is usually not the extent of injury which creates the most uncertainty for the defense. The adverse outcome of medical treatment is apparent from the records of treatment. What is less obvious and requires close attention is how it will be claimed that the defendants violated the standard of care in such a way as to cause the patient’s injury. In a case brought to trial 10 or more years after the alleged acts of negligence, it is especially important that the claims to be tried have been identified, investigated, and subject to complete discovery. It is the responsibility of defense counsel to see that claims as to which there has been insufficient notice and an inadequate opportunity to defend are not advanced at trial.

The purpose of statutes of limitations is to protect potential defendants from the prosecution of claims where imperfect recollection, death, unavailability of an important witness, or the absence of other evidence interferes with the ability to establish the truth. Riddlesbarger v. Hartford Ins. Co., 74 U.S. 386, 390 (1869). The law presumes that once the statutory period has expired, evidence has been lost, memories have faded, and witnesses have disappeared. Connell v. Hayden, 83 A.D.2d 30, 41 (2d Dept. 1981). In the current environment, where defendant hospital systems employ many of the patient’s caregivers and the courts permit the vaguest of bills of particulars, the challenge to defense counsel is to define the claims and the involved employees at the outset in such a way as to investigate and defend against what will be the issues raised at trial.