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Posts Tagged ‘statute of limitations’

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.

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.

All states have Statutes of Limitations for medical malpractice and dental malpractice lawsuits.  This is the time limit for filing a claim after you have been injured.  In most states, it is an absolute bar, and you cannot b

ring suit if you go even one day over.  In other states, if you can go before a judge and show good reason why you delayed over the time limit, he may give you an extension of the time limit.  But, even in those states, the extension of the time limit is usually short and can be used by the opposing lawyers to weaken your case.

The Rule Is:
Missing a time limit, or filing date, could be fatal to your case.  If you have even the slightest doubt about how much time you have left, check with a lawyer.

How Do You Calculate the Time Limit?

The date on which the clock starts running in your case is known to lawyers as the Time of Accrual and is usually the date you were injured or the date you discovered you had been the victim of medical malpractice or dental malpractice.  It can be delayed, and the clock stopped, in the case of: infants, minors, persons with legal disabilities, and by concealment or deceit on the part of the doctor.

The time limits for filing a lawsuit are determined by statute, which means the legislature in each state has set them by law.  These laws are complicated, and different limits

may apply to different types of cases.  In the next few posts, we will be discussing incidents that will either start or stop the clock.  We will also provide you with details, concerning each state’s Statute of Limitations for medical malpractice and dental malpractice.

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l” style=”text-align: justify;”>Fraud and deceit by physicians and dentists are serious words. They mean the doctor either defrauded you or deliberately deceived you. There are usually four ways in which a doctor can be guilty of these unethical actions.

First, the doctor intentionally misleads you as to the nature

of your condition and what the treatment involves.

A North Carolina surgeon told a patient that a heart operation held no risk. The patient was not yet 40 years old, the operation was not really necessary, and he could have lived for many years without it. But, since the doctor had assured him there was not any risk, he decided to go ahead with it, just to be on the safe side. After the operation, the patient developed an air bubble to the brain and died.

Postoperatively, the patient’s family found out the operation was considered dangerous by heart surgeon, and as many as 10% of the people who have it die. Even though the doctor had performed the operation correctly and had not committed malpractice, he had willfully concealed the dangers of the operation to get the patient to agree to the surgery. The family sued, charging that the doctor had deliberately deceived the patient about the risks, and he did it for the money. The jury thought so, too.

Second, the doctor intentionally misleads you as to what went wrong with a treatment and gives you a false story to keep you from suing him, until the statute of limitations (time limit) runs out.

Third, the doctor alters or destroys his office records, or the hospital records, in order to conceal the truth from your lawyer and the jury. This is known as spoliation of evidence and is the most serious of all.

In a New York case, a woman was sent home from the hospital with pneumonia and she died. When the family’s lawyer obtained the hospital chart, all the reports of laboratory tests were normal. Since that did not square with the patient’s condition, the lawyer obtained a court order to see the original records in the hospital laboratory. It turned out that when the doctor was notified he was being sued for medical malpractice, he went to the hospital and removed the original laboratory report slips that showed his patient had a raging infection. He substituted forged reports that showed a normal white blood count when he sent her home. When that was brought out at trial, the jury not only gave the victim’s family an award for compensatory damages but added an amount for punitive damages, to punish the doctor for attempting to deceive the court.

Since reports of surgical operations and discharge summaries are very important, most hospitals require doctors to dictate the report of an operation before he leaves the surgical suite and the discharge summary within 48 hours after his patient is discharged from the hospital. The dates these reports are dictated and transcribed are indicated by a notation in the lower, left corner that read like this: D: 01/22/09, T: 01/24/09.

In a New Jersey case, a team of neurosurgeons botched a major brain operation, and the patient died. When the patient’s family filed a lawsuit for medical malpractice, and their lawyer obtained the medical records from the hospital, he discovered the report of the operation and the discharge summary had been dictated and typed a year after the patient died and two months after the lawsuit had been filed. Under hospital policy, the doctors would have been suspended and would not have been able to admit patients to the hospital, if the chart had not been completed. But, they had been admitting patients all along, since the patient died, so it was obvious they had destroyed their original reports and substituted falsified reports. The secretary was honest and noted the correct dates she typed the revisions and exposed the doctors’ scheme to deceive the court. The patient’s family won at trial.

Not all cases of alteration of medical records and spoliation of evidence are as easily detected as in this New Jersey case. Sometimes it requires an Authenticator of Disputed Documents (handwriting expert) to prove it to the satisfaction of the court. In a Virginia case, the authenticator found that the doctor had used a pen that was not even manufacturer until after the dates on his handwritten note. If you can show medical records have been altered or destroyed, it puts you in a strong position.

Fourth, a doctor offers to help you with your medical malpractice case or dental malpractice case or promises to be your expert witness. At the last minute, he fails to appear to testify or changes his opinion on the witness stand.

A Utah lawyer was suing an anesthesiologist for medical malpractice, which resulted in the death of a patient during surgery. The surgeon, who had performed the operation was critical of the anesthesiologist and offered to act as the lawyer’s medical expert witness. The lawyer did not bother to look for another expert or obtain any other opinion. The surgeon was also helpful in preparing an airtight case against the anesthesiologist, and there was never any question that the surgeon was responsible, too.

Three weeks before the case was due to go to trial, the surgeon announced that he would not be able to act as the expert witness “for personal reasons.” When the lawyer went to an independent expert, who was located in another city, he was astonished to learn that the surgeon, who had been so helpful, was the one who had committed malpractice and should have been sued. The lawyer did not have a case at all against the anesthesiologist. The surgeon had led the lawyer along until it was too late to sue him. When confronted, the surgeon admitted he never had any intention of testifying. It was too late to find a substitute expert, and the case was lost.

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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