Archive for June, 2011
You have surgery for sinus trouble but do not get any relief because of negligence by the ENT specialist, who performed the surgery. He continues to treat you for another 10 years. Can you still bring a medical malpractice lawsuit
, even though you realized you have been the victim of malpractice, after the operation 10 years earlier but did not file your lawsuit?
In some states you can. The clock does not start until after the last treatment for the same or a related condition. Continuing treatments for the same sinus trouble would stop the clock, so would respiratory trouble or ear disease, if they were complications of the sinus trouble. But, treatment for a sprained ankle or a stomach complaint would not do it, because they are not related to the sinus disease.
Some people use this law to bring a medical malpractice case to life, long after the time limit has run out. When they find out too late the
doctor has done something wrong, they go back and ask for another treatment. That can automatically start the clock running again.
In a Michigan case, a man had over 200 hair transplants for baldness. He liked them at first but later decided he did not like them. As time went on, he became more and more dissatisfied and finally decided to sue the dermatologist for medical malpractice. However, the two-year time limit had run out, so his lawyer told him to go back to the doctor and get just one transplant to cover a small bare spot. The unsuspecting dermatologist did it, and the very next day, the man’s lawyer filed a medical malpractice lawsuit for everything that had been done years before. The single treatment started the clock again.
This means legal disability, not physical disability. It includes minors, mental incompetents, persons in a coma, or persons who are physically prevented from exercising their legal rights, such as military personnel serving abroad or people in jail. Anyone who is prevented from exercising his or her legal rights for good reason is considered legally disabled and the Statute is Tolled (the clock is stopped) until the legal disability is removed. Most states do not start counting until the disabled person, or a legal guardian, is able to assert their legal rights.
If a child is injured, the clock may not start running until the child reaches age 10 or even full adulthood. Other examples of tolling the statute are: if a person is temporarily, mentally incompetent because of an overdose of drugs given by a doctor and is spaced out for a long time, or if a person is confined in a mental institution. It may not start until after the person is released and has become mentally competent again. Some states even extend the time limit for people in prison. A person in prison is usually not in a position to do anything about it until after they are released. Fundamental fairness requires an extension.
Date of the Occurrence
This is the date the malpractice actually occurred. You were the victim of medical malpractice during surgery or in the emergency department of a hospital. There is no difficulty in determining the Date of the Occurrence. On the other hand, if your mother went to a doctor complaining of a lump in her breast, and he saw her several times over a period of a year but failed to do a diagnostic work-up that would have revealed cancer, the date of the occurrence could be difficult to determine. Or, if you had a series of spinal manipulations for a bad back, you cannot be sure which one caused your fractured vertebrae.
Date of Discovery
Often, it is difficult to determine precisely when malpractice and injury occurred. In some cases, it is not even discovered until after the time limit, counting from the date of the occurrence, has run out. Therefore, most states use another measure called the Date of Discovery. This is the date on which a reasonable person should have discovered that he or she was the victim of malpractice.
In most medical malpractice or dental malpractice cases, the victims do not realize they have been the victims of malpractice for a long time. They tend to think their complaints are normal and usual complications of their disease or treatment. In fact, it is estimated that almost 90% of malpractice victims do not file suit, because they never realize their injuries are due to someone’s negligence.
A Georgia man suffered a serious back injury while working on a construction site. The emergency room doctors were surprised to see a surgical clamp on the x-rays. When the doctors questioned the patient, he told them he had had stomach surgery in Delaware 20 years earlier. He also told them he had suffered from chronic stomach trouble ever since, but it had not been bad enough for him to consult a doctor. He discovered the malpractice, and the clock started running when the doctor in Georgia told him about the instrument left in his abdomen. He sued and won.
Let us assume the man in Georgia had had so much discomfort from the clamp in his abdomen, that he had gone to another doctor a year later, and that doctor said, “I don’t know why you are still having stomach trouble. Let’s take an x-ray.” But, the patient had ignored the doctor’s advice and did not do anything until later. The court would have said that he should reasonably have discovered it sooner when it would have shown up on an x-ray and failure to do so was his own fault. His complaint would be thrown out, because it was way over the time limit.
At the other extreme, a Pennsylvania woman tried to sue a plastic surgeon for medical malpractice one week after the statute of limitations had run, because she decided that she did not like the rhinoplasty he had done. The court ruled there was no valid excuse for not having moved sooner. She had been looking at her nose every day since her surgery and had ample opportunity to make up her mind. Her case was barred.
The legal term for this is Laches, and it means that if you sit on your legal rights for a long time and do not move to enforce them, you lose them. Once you have reason to suspect medical malpractice or dental malpractice, you must move, if only to find out whether your suspicions are correct.