Just when you think you know everything you need to know in order to reduce your risk of being sued for malpractice, you learn something new.
It all began several months ago. Because work and family issues had been demanding more of my time, I had taken a break from my exercise program. Unfortunately, a routine check-up revealed that my blood pressure was going back up and that I was gaining too much weight. My doctor warned that without action on my part, I was at risk for imminent demise. The stern warning triggered a commitment to walk each day for at least an hour.
On several of these walks, a neighbor passing by in his truck would stop me to tell me about his problems with a company that had done some work on his house. The work was so poorly done that my neighbor would be spending quite a bit of money correcting it. He wondered if I could help. Each time, I answered that I needed to see the contract before I could do anything. Each time, he said he’d get back to me if he couldn’t resolve things with the builder. On several of these drive-by discussions, he would report that he thought things were settled and he wouldn’t need me.
I wanted to see the contract because I thought it might have arbitration provisions that would make pursuing the claim cost-prohibitive. Thinking that I had several years to file suit on a breach of contract claim, I put the matter on the back burner.
Eventually, my neighbor realized that the builder wasn’t going to pay him and that he needed me to step in. When I finally got the contract, I found the dreaded arbitration clause. I also found that the contract required all claims to be filed within one year of the discovery of any damages. The one year anniversary had expired shortly before I got the contract.
As you might expect, panic set in, my blood pressure soared to new heights, and I spent the next several hours researching the validity of contractual modifications to the statute of limitations. To my horror, I learned that many courts uphold those provisions. (See e.g. Holcomb v. Stewart, 129 Nev. Adv. Op. No. 18 (2013); Lyon v. Superior Court, 204 Cal. Rptr. 3d 670(2012); and many cases cited therein).
Fortunately, the builder eventually decided that it would be cheaper to settle the case than to go to court. Thanks to a generous settlement offer, we were able to resolve the matter to my client’s satisfaction.
I learned many lessons from the case. First, it’s likely that a court will uphold a contract that shortens the statute of limitations. Second, immediately after the first drive-by chat, I should have sent my neighbor a letter telling him that without seeing the contract, I couldn’t give him legal advice and that I hadn’t accepted his case. I should have also advised him in writing that I need to see the contract immediately to determine whether there were any time limitations on filing his claim. Third, I needed to buy an elliptical trainer and exercise at home.
I hope you can profit from my experience and avoid a similar problem. I’m also wondering whether I can deduct the cost of the elliptical trainer as a business expense. If any of you have advice on the matter, please let me know.
Patrice Walker has a solo general practice in Chapel Hill where she focuses on representing health care professionals. She publishes a blog, “Musings from Chapel Hill” focusing on health care issues. Patrice graduated with honors from UNC Law School in 1976. Contact her at email@example.com or 919-933-1325.