Statute of Limitations for the Mentally Ill

Previous | Next
 rated by 0 users
Latest post Thu, Mar 24 2011 5:32 PM by adjuster jack. 9 replies.
  • Mon, Mar 21 2011 2:49 PM

    • RGouger
      Consumer
    • Not Ranked
    • Joined on Mon, Mar 21 2011
    • TX
    • Posts 4

    Statute of Limitations for the Mentally Ill

    My friend is considered mentally incompetent by the state of Texas and by Social Security.  I was told that the 2 year statute of limitations can be "tolled" or extended in her case.  Is this true?  Thank you.

  • Mon, Mar 21 2011 2:56 PM In reply to

    Re: Statute of Limitations for the Mentally Ill

    "the 2 year statute of limitations" for what?

    There's lots of SOLs and lots of reasons for "tolling" them.

    The phrase "personal injury" doesn't tell us anything either.

    What happened to her, when did it happen, and who does she want to sue?

    And what do you mean by "considered" mentally incompetent?

    Did a court of law declare her mentally incompetent? Was there a conservator or guardian appointed?

    Details count.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Mon, Mar 21 2011 3:24 PM In reply to

    • RGouger
      Consumer
    • Not Ranked
    • Joined on Mon, Mar 21 2011
    • TX
    • Posts 4

    Re: Statute of Limitations for the Mentally Ill

    The Government determined that she is mentally disabled, as has the State of Texas.  2 1/2 years ago, she had an MRI done at a doctor's office.  Keep in mind that the doctor's office was aware that she had knee injury, and was on medication, has Lupus and multiple other medical issues that would effect balance, etc.  When the MRI was completed she was told they were done and she could leave.  No one came in to assist her in getting off the table even though they were fully aware of her issues, both mental and physical.  As she got off the table, the "step" slipped and she fell on her left side, shattering her left wrist and damaging the shoulder.  She was crying and in horrendous pain.  The doctor had her call 911 rather than his office staff.  An ambulance came and took her to the hospital.  By the way, this same doctor is now telling her that she needs additional surgery on the wrist and shoulder, as it is quite deformed and she has lost partial use of the left arm.  The doctor told a family member that she "elected" to fall off the MRI table!  A court of law did declare her mentally incompetent and she has been institutionalized 4 times. There was no conservator or guardian appointed, but she is still considered mentally disabled, which is reason she get Social Security.  In fact, the limited use of her arm is the reason I am posting this instead of her.  

     

    So, here are my questions:  First, is this considered personal injury or medical malpractice or both?

    Second, because she is considered mentally incompetent, can the statute of limitations be tolled and extended.  This happened 7/10/2008.  At that time the doctor told a family member that she chose to fall and it was her fault.

    What is her best course of action, if there is one at this point?  She became aware that she could possibly sue the physician just recently.  Again, she was under the impression that it was her fault up until recently.

    Thank you for you assistance.

    Rita

  • Mon, Mar 21 2011 3:46 PM In reply to

    • LynnM
      Lawyer
    • Top 10 Contributor
    • Joined on Mon, Apr 3 2000
    • CA
    • Posts 28,248

    Re: Statute of Limitations for the Mentally Ill

    WHat does her mental state have to do with her fall?

    If she is incompetent then she must have a guardian of some sort. Why didn;t they take action?

    edited to add :

    Missed that there is no guardian. In that case the state may consider her mentally ill in terms of getting benefits but she has apparently not been declared incompetent by a court. I see no reason to impact the SOL.

  • Mon, Mar 21 2011 5:40 PM In reply to

    Re: Statute of Limitations for the Mentally Ill

    RGouger:
    First, is this considered personal injury or medical malpractice or both?

    Probably doesn't matter since the SOL is 2 years on both. However, I see it as more of a "premises liability" since it had nothing to do with diagnosis or treatment. She could just as easily have fallen off a chair at her own house.

    RGouger:
    Second, because she is considered mentally incompetent, can the statute of limitations be tolled and extended.  This happened 7/10/2008.

    Here is a direct quote from the TX Civil Practice Code:

    • Section 16.001 - Effect of Disability
    • (a) For the purposes of this subchapter, a person is under a legal disability if the person is:
    • (1) younger than 18 years of age, regardless of whether the person is married; or
    • (2) of unsound mind.
    • (b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period.
    • (c) A person may not tack one legal disability to another to extend a limitations period.
    • (d) A disability that arises after a limitations period starts does not suspend the running of the period.

    You are still omitting important information. You write:

    RGouger:
    A court of law did declare her mentally incompetent

    When was that? If it was after the 7/10/08 accident then the SOL would not be tolled and she would have no options.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Mon, Mar 21 2011 10:41 PM In reply to

    • RGouger
      Consumer
    • Not Ranked
    • Joined on Mon, Mar 21 2011
    • TX
    • Posts 4

    Re: Statute of Limitations for the Mentally Ill

    The mental impairment was before the accident.

  • Mon, Mar 21 2011 11:44 PM In reply to

    Re: Statute of Limitations for the Mentally Ill

    RGouger:

    The mental impairment was before the accident.

    In order to determine if she qualified as being of "unsound mind" you are going to have to have the court file examined by an attorney to see why and how she was declared "mentally incompetent." You don't appear to be explaining it well.

    Then, if she does manage to get a lawyer who will file a lawsuit, the first hurdle will be the SOL. The defendant will immediately move for a dismissal based on the SOL and the lawyer will have to convince the court that her mental condition tolled the SOL.

    If that's successful, the next hurdle will be proving negligence on the part of the medical providers. That'll be even tougher.

    All I can suggest is that she consult a personal injury attorney and have the situation evaluated.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, Mar 24 2011 4:33 PM In reply to

    • RGouger
      Consumer
    • Not Ranked
    • Joined on Mon, Mar 21 2011
    • TX
    • Posts 4

    Re: Statute of Limitations for the Mentally Ill

    Since 1999, she has been to court 3 times through Rusk State Hospital and was declared to be "mental".  She is sitting right here and I am typing her exact words.  She has also been commited a total of 3 times by adult children, her parents and the State of Texas and one time through her doctor, so yes, there would court records to justify the "mental status".  Her mental disability occured long before the accident as the first time in the institution was in 1999. In the last 20 years, she has been in mental institutions in 17 times, with above mentioned 4 times being major resulting in month long stays.  I am trying my best to explain the circumstances with her words and hope I have done so.  So, again, would this not qualify for the SOL to be extended?

  • Thu, Mar 24 2011 5:10 PM In reply to

    Re: Statute of Limitations for the Mentally Ill

    Hi Rita,

    Adjuster Jack gave you the applicable TX statutes re: tolling the SOL due to mental illness.   The definition, below, is in layman's terms. (still not real helpful, however, is it?)  Bottom line, no one here, legal pro, or other, can help your friend. She needs to seek advice from a qualified TX  atty.

    Did you friend seek this treatment through her HEALTH Ins? If so, she may have to go through binding Arb per her IC. The SOL is but ONE major hurdle, she will face. 

     She MAY have a COA against the facility for negliegence. Look up the legal defi of negligence, to understand what this all means.

    The Staff had a duty to the patient to prevent harm to her, during her tx at the facility. Knowing the hx of the Pt, a prudent Staff member should have assisted her. If she was not told to wait for the Staff, or offered assistance, this could be a breach of the duty of care owed to the patient. The failure of the staff was the proximate and actual case of the Pt's injury. The Pt suffered injury due to the negligence of the Staff.  (Duty, Breach, Causation, & Dams)

    http://www.thelaw.com/guide/lawsuit/statute-of-limitations-texas/

    Disabilities

    SOL does not run until the disability ceases (infancy – to age 18, insanity). Infants have a 10 year Statute of Repose and Statute of Limitations does not run during the absence or concealment of defendant.

  • Thu, Mar 24 2011 5:32 PM In reply to

    Re: Statute of Limitations for the Mentally Ill

    Bottom line:

    It's POSSIBLE that the SOL was tolled.

    And it's POSSIBLE that the employees of the facility were negligent.

    The sooner she gets to a lawyer, the sooner you'll find out whether a lawsuit has any chance of success.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
Page 1 of 1 (10 items) | RSS

My Community

Community Membership New Users: Search Community