David Randolph Smith

Medical Expenses, Rule 15 and Limitations:
Is the Claim the Parents' or the Child's?

Biscan also involved the issue of the statute of limitations for medical expenses for a child's injuries. The original suit was timely filed by the child, Jennifer but no parents were in the suit. The defendants sought to exclude medical expenses as being a time barred by limitations. The compalint was amended (more than a year after filing) under Rule 15, however, to add the father as a party. The Court of appeals held the claim "related back" and was thus not barred. We have filed a brief on this issue in a similar setting urging that under certain circumstances the claim for medical expenses is the child's claim to begin with. Now, under Biscan, Rule 15 provides a cure where the original complaint was filed within one year of the injury. If more than a year elapsed, however, the issue becomes who "owns" the claim--child or parent. See brief.