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Posts Tagged ‘date of discovery’

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.

Stale Cases

You knew you were the victim of malpractice but did not know what to do. You were so shocked and depressed that you kept it to yourself, or like many people, you hated the thought of getting involved in a lawsuit and

waited three or four years before deciding to go ahead and consult a lawyer. It may be too late, and you may be barred from filing your lawsuit. It is called the Statute of Limitations and applies to you if you do not file your lawsuit within the prescribed time. You will be forever barred from suing.

The time limit is generally two to three years from the Date of Discovery, which is the date on which you discover, or should have discovered, that you were the victim of malpractice. Most states grant extensions for cases involving minors, mental patients, and x-ray treatment. The statutes of limitations are different for each state, very complex, and constantly being changed.

The Rule Is: If you are in doubt about the time limit in your case, consult a lawyer.

In a Delaware case, a Georgia man suffered a broken rib on a construction site. When he went to the hospital, the x-ray showed a surgical instrument that had been left in his abdomen by a surgeon in Delaware 10 years before. He won his case, because there was no way he could have suspected the instrument was there. The fact that he had not discovered it Tolled the Statute, which is a legal way of saying that it stopped the clock.

The second reason for not delaying is that people die or move away; memories fade; records become lost or mislaid; and it becomes more difficult, or even impossible, for you to get the facts you need to prove your case.

The third reason is that wounds heal, scars fade, and stiff joints limber up, so that your injuries become less impressive with the passage of time.

Fourth, it may be much more difficult, or impossible, for you to collect if the doctor has died in the meantime. There is a legal rule in many states called The Dead Man’s Rule, which means you cannot say the doctor said or did something if he is not available to refute it and defend himself. It could be used to prevent you from bringing in the necessary testimony to win your case.

Furthermore, a lot of doctors have what is known as Claims Made malpractice insurance policies, which only cover claims actually filed while the policy is in force. If your lawsuit is filed after the doctor dies or retires and his insurance lapses, there may not be any money to pay you, even if you win.

Finally, many jurors will ask themselves why you have delayed so long in asking for relief. If you think you have been the victim of malpractice, do not sit on your rights. Consult a lawyer.

Plastic Surgery

Juries are sympathetic to people who have been disfigured or injured through no fault of their own and made worse by Plastic Surgery. However, outside of localities where cosmetic surgery is common, juries do not sympathize with people who have surgery done for reasons they consider frivolous. The average jury is composed of ordinary people, who work for a living. The idea of someone spending thousands of dollars just to look better, and then complain because the result was not as good as expected, do not move the average juror to tears.

Cosmetic Plastic Surgery, which is done for vanity, is unnecessary to the patient’s health. The surgeon may do a selling job to persuade the patient to go through with it, often just to get the surgical fee, which can amount to thousands of dollars for an hour’s work doing a “nose job.” In that case, it is a different matter. You can sometimes get around the difficult job of proving malpractice and file a suit for breach of contract. The surgeon persuaded you to submit to the expense, suffering, and risk of the operation on the direct or implied promise that you would look and/or feel better. If he failed to deliver, you can probably get into court, no matter how many consent forms you signed or how many pamphlets he gave you disclaiming any promises or guarantees. Juries tend to view those disclaimers as sharp practices and ignore them.

Dentistry

The trouble with suing a dentist is that, even if you win, you may not receive enough to make it worthwhile. That is because most jurors have had dental work and know what wonders modern dentistry can accomplish. Many people have cosmetic dentistry to make their teeth look perfect. Neither the wearer or anybody else can tell them from the real thing. As a result, a dentist can damage your teeth, and the case is not worth very much. And, it is not much good complaining about the pain and suffering you endured, since every juror knows that pain and suffering can occur with normal dental treatment.

The exception is when a dentist causes injuries such as brain damage or death due to anesthesia; failure to give prophylactic antibiotics to patients with rheumatic heart disease; infection that spreads to other parts of the body; or nerve injuries. A New Jersey man obtained a $400,000.00 settlement from a dentist who failed to diagnose cancer of the mouth until it had spread and required disfiguring surgery of the face and neck.

     
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