Each year in the United States, between 44,000 and 98,000 hospitalized patients die as a result of medical errors. Nearly a third of such errors are caused by negligence. Although most of these negligent mistakes become apparent to patients or their families shortly after they occur, a few remain undiscoverable for an extended length of time. When medical errors lead to the misdiagnosis of diseases with long latency periods, patients may be delayed in obtaining appropriate treatment. Nonetheless, in Maine, because medical malpractice actions are governed by a strict occurrence-based statute of limitations as opposed to a limitations period that does not begin to run until injuries become discoverable, these plaintiffs are also among the least likely to receive any compensation. Latent error malpractice actions are, admittedly, few in number. Nonetheless, they are worth examining for two reasons. First, misdiagnosis of the types of diseases involved often leads to injuries that are financially, physically, and, at times, mentally devastating, making victims of latent medical errors among the most vulnerable of plaintiffs. To be rational, therefore, a law denying them the right to pursue their claims should serve a collective need that outweighs not only the profound individual interests possessed by these plaintiffs but also society's interest in protecting citizens who are no longer able to protect themselves. Second, where individuals' legal rights are arbitrarily extinguished in order to secure a benefit for society, it should be capable of demonstration that the deprivation of rights actually helps achieve that benefit. This Comment examines Maine's statute of limitations for medical malpractice within the context of tort and health care reform. Specifically, this Comment addresses the efficacy of legislation fixing accrual at the time of the negligent act, thus precluding courts from applying a “discovery rule” to actions in which injury becomes apparent only after the statute has run. Discussion of the statute of limitations propels an examination of factors contributing to the high frequency of medical malpractice claims, and the need to change current procedures within both the medical and legal systems that disserve the public interest.

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