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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.

Brain Damaged Infants

Everyone sympathizes with injured children and the financial problems of parents who must care for them. It is usually difficult for the doctor to show he did not injure the child. So many things can go wro

ng during pregnancy and delivery, and newborn infants are easily damaged. That is harsh, and infants are born with birth defects from natural causes that have nothing to do with the delivery or the care in the nursery. But, the birth defects that are due to other causes are of different types. When a newborn infant or small child is found to be suffering from a brain hemorrhage, hypoxia (lack of oxygen) to the brain, cerebral palsy, or injuries to the nerve trunks to the arm, the cause is probably a birth injury that could have been avoided.

In a Texas case, a newborn infant suffered a brain hemorrhage which resulted in severe, permanent impairment. The delivery was normal and the APGARs (tests performed by the doctor or nurse right after an infant is born to determine how healthy it is) were normal when it was born. No one could explain it. It was passed off as “one of those accidents that happen.” Then, about three years later, a nurse let it slip that she had dropped the infant on the floor while bathing it. There was no one around, so she put it back in the crib and said nothing. Luckily, the person she talked to was a friend of the child’s mother and relayed the story. When questioned under oath, the nurse admitted the accident, and the child’s parents brought a successful lawsuit against the hospital, which was responsible for the nurse’s actions.

The Rule Is: A brain damaged infant, or child with cerebral palsy, is due to some error or malpractice until proven otherwise.

Another powerful factor in your favor is that the jury wants to help the victims of this tragedy, no matter who was or was not at fault. Society wants to help the victims of this tragedy. There are limited public funds available, and the only way to do so is out of the doctor’s malpractice insurance. It is what is called loss allocation. Like workman’s compensation, it is a legal theory that allows juries to help people who have been severely injured through no fault of their own, without having to decide whether the doctor did something bad or just made an honest error that caused the injury.

Patient Permanently Disabled or in a Coma

When a patient is left permanently disabled and can no longer care for himself or herself, the costs of medical care become astronomical. Juries tend to be sympathetic, if not to the comatose patient, then to the family facing huge medical costs.

In these cases, the jury wants to help out, and the only money available is the doctor’s insurance policy. Public funds or assistance are inadequate. So, juries will bend over backward to find an excuse to give a helping hand. They see their social responsibility as helping the person who has been severely injured, and the family burdened with crushing expenses, rather than trying to split hairs in deciding whether or not the doctor made an error or a cold, impartial balancing of the scales of justice. They believe the easiest way to help with the problem is to have the doctor’s insurance company pick up the expense.

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