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Posts Tagged ‘medical malpractice’
Tuesday, May 22nd, 2012
Earlier, we said that the doctor had to have exclusive control of your care. What if you do not know who had control, or what if several doctors and nurses were involved. The California patient we mentioned earlier had no idea who was responsible for his injury. In a case like that, you do not have to know. You can ask everybody and anybody what they did to you. In the California case, the court said all defendants, who had any part in the surgery, could be called upon to explain their actions.
Can you see what this does for you? You only have to establish what happened to you was probably due to medical malpractice or dental malpractice, and everybody who treated you has to explain his or her actions. It prevents the doctors from defeating your case by simply sitting on evidence, which only they have access to. It may be impossible for you to find out precisely what happened. So, res ipsa makes the doctor, who knows what went on, supply the information.
You do not paint yourself into a corner by guessing who you should sue, you sue under the theory of joint and several liability. That means all or any one of the people you name may be liable for your injuries and the whole amount of your damages. It lets the court assign responsibility and damages as it sees fit. You do not have the responsibility of trying to tell the jury who did what, or who has the money to pay for your damages.
In a Pennsylvania case, a patient suffered a serious back injury while under anesthesia, probably from having been dropped, and only sued the surgeon. When his medical expert took the witness stand at trial, the defense lawyer asked him if he could say exactly who dropped and injured the patient. Was it the surgeon, the anesthetist, or a hospital employee? The expert admitted he could not say for sure, and the judge ended the trial right there, because the patient failed to make a case. If he had named everybody, jointly and severally, he probably would have won.
The Rule Is: If you are not sure how your injury occurred, or who was responsible, keep your options open until you find out. Your lawyer will know if your state recognizes the theory of res ipsa in medical malpractice and dental malpractice cases.
Tags: dental malpracice, dental malpractice cases, joint and several liability, medical malpractice, res ipsa, theory of res ipsa
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Thursday, April 19th, 2012
Obviously, you cannot throw the burden of proof onto the doctor just to make it easier for you. In order for your lawyer to plead res ipsa, you have to satisfy three conditions:
1. What happened to you must be the sort of thing that does not normally happen in the absence of medical malpractice or dental malpractice.
Like the patient finding his shoulder was damaged after an appendectomy, the injury has to be something that cannot be easily explained as a normal complication, such as having a sore foot for a few weeks after foot surgery, or your 90 year-old grandmother dying of a stroke. It has to be something out of the ordinary, and something the doctors never warned you about, such as finding that your baby is brain damaged after you were led to believe your pregnancy and delivery were normal.
2. Whatever was done was under the physician’s or dentist’s exclusive control.
The best example of this is a surgery in which the doctor has full authority and responsibility for everything that is done. It is known as the Captain of the Ship theory.
3. You were either unconscious at the time of your injury or doing exactly what you were told to do by the physician or dentist.
What happened was not due to any voluntary act on your part, and you were not guilty of contributory negligence.
In a New Jersey case, a doctor treated a woman for a chronic chest complaint without ever taking a chest x-ray. Finally, after six years, another doctor took an x-ray and found she had tuberculosis. When the first doctor was sued, he said it was the patient’s fault. If she did not improve in six years, she should have consulted another doctor. No one forced her to keep going back to him when she was not getting better. The court disagreed, stating that the patient could not be criticized for misplaced confidence in her doctor and following his orders faithfully. He had exclusive control and was the only one to blame.
Tags: captain of the ship theory, contributory negligence, dental malpractice, malpractice case, medical malpractice, res ipsa
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Tuesday, March 27th, 2012
Your lawyer will tell you that pleading res ipsa is risky, and your chances of winning are not good. He will probably recommend using it only as a last resort, if you absolutely cannot find a doctor willing to act as your medical expert witness or dental expert witness. Even though your case may be obvious, the defense lawyers will bring in experts against you and raise side issues and legal technicalities that you will probably lose.
But res ipsa does come into malpractice cases in another way and can be useful when you do not know exactly what happened or who was responsible. In order to sustain a legal complaint against somebody, whether it is for medical malpractice, dental malpractice, or food poisoning in a restaurant, you have to prove three things:
1. What injury you suffered.
2. Who was responsible.
3. How that person’s actions caused the injury.
What if you are not sure what happened, or who did it? When you go to a doctor’s office or into a hospital, people will say: “take this pill”, “hold still for an injection”, etc. Either they do not explain what they are going to do, or it is highly technical, and you do not understand it. People you never saw before, and may never see again, do all sorts of things to you. A doctor comes into your room the night before surgery, asks you a few questions, listens to your heart, and leaves. You do not know who he is or what his function is, but this is the doctor, who is going to give you anesthesia the next day. For three or four hours, your life and future health will be in his hands.
You have headaches or chest pains, and your doctor sends you to the hospital for arteriography (x-rays of an artery). In the x-ray department, someone you do not know, who could be a doctor, a nurse, or a technician, puts a tube into the artery in your groin and threads it up to your heart or brain and injects dye, so they can take pictures of the arteries. This is medicine at its best. But, do you know who they are or what they are doing? You can only hope they are qualified do it right.
In a Missouri case, a man had an aneurysm (weak spot and bulge) of an artery in the brain. Aneurysms can burst and kill you, but brain surgery to clamp them is risky and expensive. So, it was decided to use another treatment. The doctor put a tube into the femoral artery (in the groin) and threaded it up to the aneurysm in the brain. Then he injected a medical version of crazy glue, which sticks to human tissue. The glue seals the leak just as effectively as brain surgery. When it works, it is magic.
Before pulling out the tube, the doctor sent the patient back to x-ray to check that the glue was in the right place. But, by the time the x-rays were taken, the glue had hardened around the tip of the tube. One end of the tube was stuck to his brain, and the other was sticking out of his groin. The tube could not be pulled out without tearing the artery and causing a potentially fatal hemorrhage. The court held that a juror does not need a medical expert witness to know that the tube should not have been left in until the glue hardened, and the patient did not need an expert to explain the malpractice.
Or, you are in an automobile accident and taken to the ER. They admit you to the hospital, where you may be treated by several different doctors and nurses. Ideally, you get the best medical care, and everything turns out fine. But, when you are discharged from the hospital and find out something was done wrong, how do you know when or where it happened, or who did it? Can you use res ipsa in those situations?
The way res ipsa works is best seen in a famous California case. A doctor took out a patient’s appendix, and when the patient woke up, he found that the nerves and muscles of one shoulder were permanently damaged. It is a long way from the appendix to the shoulder, so he sued the doctor for medical malpractice. Remember, we said you have to say who hurt you and how they did it in order to establish your case. The doctor’s lawyer said the patient did not have a case, because he could not say 1.) who had injured him, or 2.) how it had been done.
That was unfair, because the patient was asleep at the time, and there was no way he could know what happened. All he knew was that he had a normal shoulder before the operation and was crippled when he woke up. The case went up to the California Supreme Court, not once but twice, and both times the court said the plaintiff did not have to say who hurt him or how he was injured. Since the doctors and nurses were the only ones who knew what took place, it was up to them to explain how the injury could have happened without negligence.
That is how you can use the theory of res ipsa. When you do not know what happened, it shifts the burden of proving how you were injured to the doctor, who then has to prove he did not commit medical malpractice or dental malpractice. Does that go against the spirit of the law that says you are innocent until proven guilty? No. It is a matter of fairness and makes the person who has the information come forward with it. If a doctor could cover up merely by refusing to disclose what happened, it would be easy for him to win malpractice suits by concealing the evidence and would be unfair to his patients. Res ipsa makes the doctor come forth with the evidence and justify his actions.
Tags: aneurysm, appendix, arteriography, dental expert witness, dental malpractice, food poisoning, malpractice, malpractice cases, medical expert witness, medical malpractice, res ipsa
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Wednesday, February 29th, 2012
Do you always need a medical expert witness or a dental expert witness to explain a doctor’s malpractice to the jury? You do, but there is an exception. The function of a medical expert witness or a dental expert witness is to explain technical arguments in simple terms the jury can understand. In medical malpractice and dental malpractice cases, each side hires doctors as expert witnesses, to explain its version of what happened to the jurors.
What if you cannot find a doctor, who is willing to be your expert witness and testify on your behalf? If you do not have an expert witness, the judge will probably rule that you have failed to make a Prima Facie Case, which means you have failed to show you have a valid complaint, and the judge will dismiss your case before the jury even hears your arguments.
Can you get around that obstacle, or do you just let your case go? Theoretically, if you know a lot about medicine, you could take the witness stand and explain your side of the argument, but you would have very little chance of winning. Your expertise would be no match for the specialists testifying against you, and you would be an easy mark for a skilled, defense lawyer.
Winning a medical malpractice or dental malpractice lawsuit is like winning a boxing championship – you actually have to beat the champ. A tie will not do. In a medical malpractice or dental malpractice lawsuit, the doctor you are suing can act as his own expert, because he is an expert – and win.
There is another way you can go. If the malpractice is so obvious that the average juror can understand it without an explanation, there is a legal theory called Res Ipsa Loquitur, which means “the thing speaks for itself”, and in most states, you do not need an expert witness. In an Illinois case, a patient had a myelogram (injection of dye into the spinal canal) to diagnose the cause of back pain. During the injection, he felt a severe pain in his leg and afterward found that his leg was permanently paralyzed. Since he was not lame when he walked into the hospital, and paralysis is not a normal and usual complication of a myelogram, the court held that the average juror could understand there was malpractice, and he did not need a medical expert witness to explain what happened. In a Kansas case, a surgeon left a gauze sponge in a woman’s abdomen. The court ruled it was common knowledge that leaving a sponge in a patient was malpractice, and the woman did not need a medical expert witness.
Tags: dental expert witness, dental malpractice, malpractice, medical expert witness, medical malpractice, myelogram, Prima Facie Case, Res Ipsa Loquitur
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Tuesday, February 14th, 2012
As we discussed earlier, in the case of the defective artificial lens implant, the fact that a product is defective, and causes injuries, does not relieve the doctor of his duty to use it carefully.
A Louisiana woman continued to have a lot of pain after a hysterectomy. The surgeon told her it was normal and would gradually go away. After a few months with no improvement, she went to another doctor, who took an x-ray and discovered part of a surgical clamp that had broken off was still in her abdomen. Of course, she sued the manufacturer of the instrument, claiming that it broke, because it was defective. She named the hospital as a defendant, because the scrub nurse, who was responsible for handling and counting the surgical instruments during the operation, failed to tell the doctor there was a piece missing from one of them. If she had told him, he could have located the missing piece and removed it, then and there. She also sued the surgeon for medical malpractice for failure to: 1.) note the broken instrument while he was operating; 2.) heed her complaints after the operation and take an x-ray, which would have revealed the metallic foreign object in her abdomen; and 3.) remove it promptly, which would have relieved her pain.
A good example of injury from improper use of a safe remedy was a New Jersey case in which a woman was getting weekly vitamin B-12 injections from her family doctor. During one injection, the needle hit the sciatic nerve, which runs down the back of the leg, and gave her permanent “foot drop.” She could not lift her foot, and her toes dragged on the ground when she walked. The doctor claimed it was the fault of the vitamin solution, which irritated the nerve (that was true), but the court said it was also due to his improper use of the medicine. Vitamin B-12 is only good for pernicious anemia, which the patient did not have. The shots were useless. It was medical malpractice for him to have exposed her needlessly to the risk of nerve injury, just to get her money for a weekly office visit and injection.
The Rule Is: When you are injured by a product, you can sue the manufacturer, wholesaler, and retailer, including the hospital, and you have to show that your injury was of a type that could be caused by the defect. You can also sue the doctor for medical malpractice if your injury was partly due to improper use.
Tags: broken instrument, defective product, medical malpractice, metallic foreign object
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Thursday, January 5th, 2012
Did you have a bad reaction to a drug? There was not anything wrong with the medicine; you just had a bad reaction. A doctor gives you an injection of penicillin. There is nothing wrong with the penicillin, but you are sensitive to it and have a severe reaction. Your husband goes to the hospital for a kidney x-ray, and the technician gives him an IV injection of a dye that contains iodine. Thousands of people have these x-rays every day with no harmful effects, but your husband is violently allergic to shellfish and anything that contains iodine. He goes into shock and almost dies. Can you bring a lawsuit?
There is an old saying that a dog is allowed one bite. Actually, a dog is not allowed any bites. In olden times, when people were kicked or run over by horses, gored by bulls, or bitten by dogs, the law said the owner of a tame, domestic animal cannot be held liable for harboring a dangerous animal, unless he has some warning that it is dangerous. So, an owner could not be sued the first time a dog bit or a horse kicked. But, after the first attack, the owner had what lawyers call scienter, which means he knew the animal was dangerous, and anybody else it attacked could sue him.
That same older legal theory applies to medicine today. If a doctor gives you a drug and does not know you are allergic, it is not his fault if you have a reaction. However, if he knows you have had a reaction, or are likely to develop one, and gives you the drug, he has scienter and is responsible for whatever happens. If the drug is one which causes a lot of reactions, the doctor must also check carefully to learn whether you might be allergic to it.
A South Carolina woman went to the hospital for removal of a kidney stone. When she gave a history of sensitivity to penicillin, it was clearly recorded in her chart. But, just before surgery, the surgeon ordered IV administration of another drug, which should never be given to patients with a sensitivity to penicillin. The woman died on the operating table. Her family sued and won, because the doctor committed medical malpractice by failing to read her chart and gave her a drug to which she was very likely to be sensitive.
The Rule Is: If you are allergic, or have sensitivity to a drug, the doctor is only responsible for a bad reaction if he knows, or should have known, about your sensitivity. But, this does not excuse carelessness. He must still double check your medical history before giving you a drug that is apt to cause a bad reaction, especially if it is one that is known to be dangerous or cause a lot of reactions.
Tags: allergic, bad reaction, bad reaction to a drug, medical malpractice, penicillin, scienter, sensitivity to a drug, sensitivity to penicillin
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Thursday, December 15th, 2011
In tort law, the stream of commerce theory refers to a principle that a person or entity that participates in placing a defective product in the general marketplace is strictly liable for harm caused by the product.
A Mississippi woman was given a vitamin shot in a doctor’s office and developed a severe infection with permanent scarring at the site of the injection. She claimed the injection had been contaminated and sued both the doctor and the manufacturer of the vitamin solution. The manufacturer said that nobody had tested the vial to show the vitamin solution was actually contaminated. However, the court said the injury was of the type caused by a contaminated injection. The manufacturer was held liable under strict liability.
In a Texas case, a vial of medicine to be used in an eye operation was sterilized by placing it in a pan of strong formaldehyde solution. When the drug was drawn out of the vial and into a syringe, it was contaminated with the formaldehyde and caused serious eye damage. The patient sued the hospital and won. The court said that the hospital had made an implied warranty that the drug was fit for use in the eye. When it injured the patient, the hospital was liable. The woman could also have sued the manufacturer.
In a Nebraska case, a woman fell and fractured her hip. The doctors put in a prosthesis (artificial hip joint) that broke because of a manufacturing defect and had to be replaced. During the second operation, the patient died of a pulmonary embolism (blood clot to the lung). Since the second surgery would not have been necessary, if the prosthesis had not been defective, the family sued the manufacturer. They also sued the hospital as the retailer, because it had charged her insurance company for the prosthesis. Some surgeons buy their own surgical implants. If that had happened in this case, the doctor could have been held liable as the retailer. However, since he had not, and the patient’s death was not due to medical malpractice, the doctor was not sued.
There is an important exception to the stream of commerce theory. If a piece of equipment has been changed or modified in any way, after it was bought, that may cut off the liability of the manufacturer and everybody else “upstream”, who are only responsible for the device as it was sold. The people who altered it would be the only ones liable, especially if the alterations or repairs played any part in the injury. If the wheelchair’s brakes in the Wisconsin case we discussed earlier had failed because a hospital repairman had worked on them, the hospital would have been liable for the faulty repairs, and the manufacturer would have been cleared.
Tags: defective product, implied warranty, medical malpractice, stream of commerce theory, strict liability
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Thursday, November 10th, 2011
There is a time when you do not have to prove that anybody did anything wrong. That is when you are injured by a defective product, whether it is a surgical instrument, an electrical or mechanical device, splint, or an implant. Let us say you had a severe burn from an electric cautery during surgery, or your hip implant broke, or your spouse had a fatal heart attack because of a defective pacemaker. All you have to show is the product or medicine was defective or harmful, and you were injured. You do not have to show there was medical malpractice or dental malpractice.
Years ago, if a manufactured product injured someone, the only person who could bring a lawsuit was the person who had bought the product. If it injured anyone else, there was nothing they could do about it, because the law said they did not have what lawyers call Privity of Contract with the manufacturer. The manufacturer was only responsible to the people who bought its product and did not have any responsibility for other people who might use it and be injured.
In an old Wisconsin case, a mother and her infant were leaving the hospital in a hospital wheelchair. The brakes were defective and allowed the wheelchair to roll into the street, where it was hit by a car. The infant was killed. When the parents sued the company that made the wheelchair and the hospital, the judge dismissed the suit. He said the company had no responsibility to the parents, because it had not sold them the wheelchair. The hospital was not liable, because it had not manufactured the wheelchair and did not know it was defective.
That theory no longer applies to injuries caused by a defective product. Today, if you are injured by a manufactured product or device, and not by someone’s actions, every person who had anything to do with the accident can be sued under what is called the theory of Strict Liability. Lawyers call it the Stream of Commerce, because a manufactured product is like a log put into a fast-running river that crashes into things as it is swept downstream. Anyone who is damaged by it, even a thousand miles downstream, has a claim against the person who put it into the water. Once a defective product is sold to the public, there is no way of knowing who will use it or where it will end up. So, the law says that everyone who had anything to do with putting it into the Stream of Commerce has a responsibility for whatever damage it does and can be sued by anybody who is injured by it. Under today’s law, the Wisconsin parents would be able to sue the manufacturer, wholesaler, retailer of the wheelchair, and the hospital.
Tags: defective product, defective products, dental malpractice, medical malpractice, privity of contract, stream of commerce, strict liability
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Thursday, October 20th, 2011
The U.S. Constitution says all powers not spelled out in the Constitution are reserved to the states. If the Constitution does not give the Federal Government authority to control something, it comes under state control. Health law comes under state control, and each state makes its own laws and rules, concerning medical malpractice and dental malpractice.
The following is a list of state time limits, or statutes of limitations, which has been abbreviated. You can see what the statute is in your state; however, the laws do change, and there are important exceptions to the rules. In some states, the courts allow different time limits than those set by law. In the states that use the hybrid rule, the time limit is an absolute deadline, and your case must be dismissed, if you are even one day late. In states that balance the equities, your lawyer may obtain an extension from the judge, but it is a needless risk that you should not run.
The Rule Is: Whether you live in a state that uses the hybrid rule or one that balances the equities, file your lawsuit early and avoid the deadline. If there is any question about the time limit in your case, do not try to figure it out yourself - consult a lawyer.
State Statutes of Limitations in Medical Malpractice and Dental Malpractice:
Alabama – 2 years from injury or discovery; 4 years absolute limit. Minors under 4 years have until 8th birthday.
Alaska – 2 years from injury or discovery. Two years + 1 day of a minor’s 18th birthday.
Arizona – 2 years from injury. Statute tolled if claimant is under 18, mentally incompetent, or imprisoned.
Arkansas – 2 years from injury. Minors under age 9 have until 11th birthday.
California – 3 years from injury or discovery; statute tolled by foreign object concealment. Minors under 6 have until 8th birthday; outside limit 4 years.
Colorado – 2 years from discovery; other types of disability until 2 years after termination; statute tolled by concealment. Minors under 6 have 2 years after 6th birthday.
Connecticut – 2 years from injury or discovery. No extension for minors.
Delaware – 2 years from injury; 3 years from discovery; minors have until 6th birthday.
District of Columbia – 3 years from injury or discovery; limitation period begins to run on minor’s 18th birthday.
Florida – 2 years from injury or discovery; outside limit 4 years. Limitations apply to minors aged 8 or older; child under 8 must file suit by 8th birthday or within limitations period outlined above, which ever time period is greater.
Georgia – 2 years from injury; 1 year from discovery of foreign object; no action may be brought more than 5 years after injury. Minors have until 7th birthday; statute of repose cannot run before minor’s 10th birthday.
Hawaii – 2 years from injury or discovery; failure to disclose malpractice tolls the statute. Absolute limit 6 years.
Idaho – 2 years from injury. Statue begins to run upon a minor’s 18th birthday.
Illinois – 2 years from injury or discovery; if injury cannot be discovered during 2 year period, action must be filed within 4 years of injury; suits may be brought up to 8 years after injury but not after age 22.
Indiana – 2 years from injury. Minors under 6 have until 8th birthday.
Iowa – 2 years from injury or discovery; 6 year absolute limit. Also applies to minors 8 or older; minors under 8 have 2 years from date of injury or by 10th birthday, whichever is later.
Kansas – 2 years from injury or discovery; maximum of 4 years from occurrence. Minors have until within 1 year of 18th birthday, but not more than 8 years after injury.
Kentucky – 1 year from injury; 5 year absolute limit. For unmarried minors, statute begins to run on 18th birthday; for married minors, statute begins to run upon date of marriage.
Louisiana – 1 year from injury or discovery; 3 year absolute limit. Concealment tolls statute.
Maine – 3 years after date of injury; action accrues on date when foreign object in body is discovered or should have been discovered. Minors have 6 years after injury or within 3 years after minor reaches age of majority, whichever occurs first.
Maryland – 5 years from injury or 3 years from discovery of injury; 3 years from occurrence for death. Minors under 16 have until 16th birthday.
Massachusetts – 3 years from injury or discovery; disability 3 years after removal; concealment tolls the statute until 3 years after discovery. Minors under 6 have until 9th birthday.
Michigan – 2 years from date of injury, or within 6 months of discovery to a maximum of 6 years following injury. Minors under 8 statute begins to run on 10th birthday, or within the 2 year statute of limitations, whichever is greater. Minors under 13 with injuries to the reproductive system have until 15th birthday or within the 2 year statute of limitations, whichever is greater.
Minnesota – 4 years from injury or omission. Minors must file within 1 year of 18th birthday but no more than 7 years after date of injury.
Mississippi – 2 years from injury, omission, or discovery; not more than 7 years after injury or omission.
Missouri – 2 years from injury or omission; not more than 10 years after date of the act. Minors under 8 must file by 20th birthday.
Montana – 3 years from injury or discovery; absolute limit 5 years.
Nebraska – 2 years from injury or death; 1 year from discovery; 2 years from last treatment in failure to diagnose cancer; absolute limit 10 years.
Nevada – 3 years from injury, omission, or within 1 year of date of discovery, whichever is earlier; minors included. Minors with brain damage or birth defects have until 10th birthday; minors whose injuries result in sterility have 2 years from date of discovery.
New Hampshire – 2 years from injury; 2 years from discovery of foreign object.
New Jersey – 2 years from injury, omission, or discovery. Statute begins to run on a minor’s 18th birthday; minors with birth injuries must file by 13th birthday.
New Mexico – 3 years from injury or death; concealment tolls statute. Minors under 6 have until 9th birthday.
New York – 30 months from injury or omission; 1 year from date foreign object was or should have been discovered. Minors have 3 years from date of 18th birthday to commence action, but statute cannot be extended more than 10 years from date of injury or omission.
North Carolina – 3 years from injury or omission; 2 years from discovery to a maximum of 4 years; 2 years for wrongful death; 1 year for discovery of foreign object to a maximum of 10 years after date of injury. Minors within 1 year of 18th birthday.
North Dakota – 2 years from injury or discovery; maximum of 6 years. Disability of a minor may not extend statute by more than 12 years.
Ohio – Notice to defendant within 1 year of injury; action may be filed 180 days after notice; service of notice tolls statute by 180 days; 1 year for foreign object, but not more than 4 years after object discovered. Minors have 4 years after injury.
Oklahoma – 2 years from injury or discovery; 2 years for death or newborn. Minority and mental incompetence extend time limit, except for newborns.
Oregon – 2 years from injury; 3 years from death; absolute limit 5 years, except for concealment.
Pennsylvania – 2 years from injury or death; concealment and disability toll statute.
Rhode Island – 3 years from injury. Statute begins to run on minor’s 18th birthday.
South Carolina – 3 years from injury or discovery; 6 years for death; 2 years from discovery of foreign object or negligent placement of device; disability 2 years from discovery or 1 year from removal.
South Dakota – 2 years after injury or omission. Minors under 6 have 2 years after 6th birthday to file; minors 6 and older must file within 3 years from injury or omission.
Tennessee – 1 year from date of injury or discovery; not more than 3 years after injury except for concealment; 1 year after discovery of concealment; 1 year for discovery of foreign object. Statute begins to run on minor’s 18th birthday.
Texas – 2 years for injury or omission; not more than 10 years after that date. Minors under 12 have until 14th birthday.
Utah – 2 years for injury or discovery; 1 year from date of insertion of foreign object left in body or discovery; not more than 4 years from date of injury or omission. Statute runs on minor’s 18th birthday.
Vermont – 3 years for injury and discovery; 2 years from occurrence for death; concealment tolls statute; absolute limit 7 years; 20 years from last treatment for x-ray injuries.
Virginia – 2 years from injury or omission; 1 year for foreign object left or discovered, but not more than 10 years after insertion. Minors under 8 have until 10th birthday.
Washington – 3 years for injury; 1 year after discovery.
West Virginia – 2 years for injury or death; concealment tolls the statute.
Wisconsin – 3 years from injury or death; 1 year from discovery; concealment tolls statute. Minors have until age 10.
Wyoming – 2 years from injury, discovery, or death; disability tolls statute until 1 year after removal; court may grant extension if malpractice not discoverable with due diligence. Minors have until 8th birthday.
The Rule Is: These state time limits, which are subject to change, are absolute deadlines. After they run out, you cannot file your lawsuit for medical malpractice or dental malpractice. If your case is near its time limit, consult a lawyer as soon as possible.
Tags: dental malpractice, hybrid rule, medical malpractice, state time limits for malpractice, statutes of limitation, statutes of limitations
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Tuesday, July 19th, 2011
Concealment and Deceit
These are specific forms of disability. A doctor delivers a baby and causes a brain injury; he knows that he can be sued. So, he alters the medical records, deletes references to what happened, and deliberately misleads the parents into thinking their child was brain damaged for some other reason.
You can understand the doctor’s feelings, even if you cannot sympathize with his actions. It is a temptation to head off a major lawsuit that will cause his medical malpractice insurance premiums to skyrocket, just by making a few judicious entries in the medical records and some soothing statements to the parents. Or, a doctor sews up an instrument inside a patient and when asked about it lies and says that all the instruments were accounted for, hoping to string the patient along until the time limit for a medical malpractice lawsuit has run out.
These actions would toll the statute of limitations until the concealment or deceit is discovered. However, the doctor has to do more than just keep quiet and not volunteer any information. No doctor is going to come right out and tell you that he committed medical malpractice.
You have to show there was active and deliberate concealment or deceit by the doctor or the hospital, and that it was designed to keep you from learning you had been the victim of malpractice. Failure to tell you, or giving you an explanation that makes him look good, is not sufficient reason to sue. The doctor has to actually try to mislead or deceive you by altering medical records, lying about what happened, or otherwise falsifying the information you receive.
Foreign Object
This means that some foreign object, a sponge or surgical instrument, was closed up inside your body without you knowing it. The clock does not start running until you detect it or should have detected it. For example, a surgical clamp or needle can stay inside your body for years without causing any trouble that would alert you to the fact it is there. A broken surgical needle can migrate around your chest or abdomen for years and cause strange symptoms without the victim realizing what is causing them. On the other hand, a gauze sponge in your abdomen, or dye injected into your spinal column, will probably cause a lot of trouble almost immediately.
In a New Hampshire case, the doctors committed medical malpractice by failing to deliver the entire placenta after the birth of a baby. That resulted in the patient having to undergo a hysterectomy. The doctors committed further malpractice by sewing up a gauze sponge inside the patient. The sponge caused serious infections over the next two or three years, but the same doctors, still treating her, either did not know or did not tell her what it was. She finally became so ill that she went to a hospital in Boston where the sponge was found and removed. But, by that time, it was too late, and she died leaving three orphans.
When her family filed a lawsuit, the doctors’ lawyers claimed the case was over the time limit, because the deceased lady and her family should have known something was wrong much earlier. But, the court held that her confidence in her doctors meant that the statute of limitations was tolled until the sponge was discovered and removed in Boston. If the doctors had advised doing an exploratory operation to find the cause of the trouble, and she had ignored that advice for more than two years, it might have been a different story.
The Rule Is: No patient can be criticized for continuing to have blind faith in a doctor even though he or she may have serious doubts about the doctor’s competence or performance. It is not a defense to a charge of medical malpractice, to say the patient should have suspected something was wrong and consulted another doctor. The doctor is the expert; it is his or her duty to refer the patient to another doctor, if referral is indicated.
Tags: concealment, deceit, foreign object, malpractice lawsuit, medical malpractice, statute of limitations, victim of malpractice
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