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.

Psychiatry

Since most psychiatrists just sit and listen, or talk to their patients, they do not get into much trouble.  Also, some psychiatric patients make poor witnesses and have long histories of abnormal behavior, so it is difficult to prove the psychiatrist made them worse.  However, there are three important exceptions:

1. Sexual relations with patients - When sex therapy began, some psychiatrists used it as an excuse to have sex with their female patients.  To add insult to injury, they would often charge for these sessions and would sometimes criticize the patient for being inadequate in bed.  Some psychiatric societies have tried to justify this atrocious behavior as legitimate therapy.  But, the public and the courts do not buy it.  The psychiatrist who does it can lose his license, as well as the malpractice case, and may also face criminal charges.  Not only is this so-called treatment unethical, but it is totally ineffective and usually makes the patient’s emotional problems worse.

2. Suicide - When a psychiatrist ignores warnings that a patient may be suicidal and fails to take precautions to prevent it, you have a case.  A suicidal patient must be hospitalized in a properly staffed facility.  In New York case, a suicidal man was admitted to a psychiatric hospital.  The staff took all the usual precautions and removed everything from his clothing and room that could be used to commit suicide.  But, they let him wander in the corridor where he found an unlocked broom closet and hanged himself with the electric cord of a floor polisher.  The family sued and won.

3. Patients dangerous to others - A psychiatrist is supposed to guard his patient’s secrets.  In the past, they would not even warn someone that a patient was threatening to kill.  A California case, in which the psychiatrist was held liable because he did not warn a woman that his patient was homicidal and promising to kill her, changed all that.  Now, most states hold a doctor responsible if he fails to warn the intended victim of his dangerous patient’s threats.

However, the psychiatrist is not responsible to everybody, only to people who he has reason to believe are threatened by his patient.  The analyst of a disturbed patient who fired a shotgun in a crowded restaurant was cleared of any liability for failure to warn the victims, because he had no warning his patient was going to kill and did not know who the victims would be.  In another landmark case, the court held that a psychiatrist had no duty to warn the parents of his suicidal patient that she intended to kill herself.

The Rule Is: A physician treating a patient who is dangerous to others is only liable if he knows the patient is dangerous and who is in danger.  He has no responsibility to unknown third parties or for harm the patient does to himself.