Medical malpractice occurs when a healthcare professional fails to provide treatment that meets a standard of care expected in the medical community. This can include errors in a diagnosis, a treatment, or the management of a patient's medical condition. Medical malpractice can occur anywhere that patients are treated, including hospitals, clinics, and private practices. What […]
Malpractice Statutes of Limitations
We’ve probably all said it: “if I only knew then, what I know now.” Medical breakthroughs may be coming on at an increasingly incredible rate of change: but that doesn’t mean that they’re moving on a steady, definite calendar. On the other hand, it’s often easy to pinpoint exact days of important medical or legal events in a person’s life. So, is there a perfect time to file a lawsuit? It turns out that this fairly straightforward question raises a lot of interesting wrinkles. One of the most pressing is about the statute of limitations (SOL). The many issues around when to file, and especially SOL, have been so important, and so vexing legally, that the north carolina Supreme Court has repeatedly visited the issue… and in the process, also relied on the United States Supreme Court. In other words, statute of limitations issues potentially raise big constitutional issues if you’ve been hurt by a healthcare provider.
A woman (let’s call her Miriam) was diagnosed as suffering from endometriosis. As a result, the Doctor who provided her treatment performed a total hysterectomy, an oopherectomy, appendectomy, and lysis for adhesions. According to court records introduced by the trial attorney, the doctor had said “(I) had done everything (I) could do to avoid a hysterectomy and that nothing else would work.”
In her work as a medical secretary, Miriam later discovered there had been possible alternatives to her surgery…and anyway, she was still undergoing treatment for her endometriosis, but with a different doctor. She then took the self-advocacy step of calling the Food and Drug Administration itself, and checked whether the drug named Danocrine (Danazol is its generic name) could’ve been tried in her case. This, if true, clearly contradicted what she been told, and perhaps even the necessity for the surgeries themselves. The legal clock, however, was running. Her medical malpractice attorney would have to confront, and explain, the statute of limitations in order to have a successful lawsuit.
II. Sticks and Stones: Defining “Injury”
Attorneys know that legislatures try to write laws according to plain meaning. This case presented some questions about what was meant by the idea of when does the statute of limitations start to run, after discovering an injury. In that sense, there was no clear definition from the legislature of what “injury” meant. Does SOL relate to the injury and only the very time it happened, or to a first awareness that you have actually been injured by the doctor? There could be a difference of mere minutes or hours between the two…or as here, months and months. This was an uphill battle by the malpractice attorney for the client. The trial court ruled against Miriam. The medical malpractice attorney brought the case to the court of appeals: where, again, Miriam lost. But the determined malpractice attorney knows that these cases often turn on important policy interpretations. In this case, there was clear ambiguity about what the word “injury” actually meant under the state statute. The malpractice attorney went on to win the case at the North Carolina Supreme Court. Miriam was allowed to proceed with this case at trial.
The North Carolina Supreme Court agreed with the malpractice attorney that the court of appeals had not used any prior North Carolina case laws or precedent to define “injury” adequately. The Court of Appeals had said “we do not believe our legislature intended to equate discovery of injury with a discovery of negligence.” But the North Carolina Supreme Court disagreed…and reviewed similar cases across the United States —noting “state after state has changed” their statute of limitations policies. Sometimes this was done by the legislature: often by the state’s supreme court. The bottom line was that the North Carolina Supreme Court disagreed with interpreting SOL as only being measured by the time of the injury.
In analyzing Miriam’s argument, the clear evidence that the drug Danocrine was available for her specific medical condition at the time of her surgery indicated both: (a) a potential injury (the surgery) and (b) a reason for her not having reasonably discovered the alternative treatment (she hadn’t been informed), within one year of the surgery itself. It’s an interesting question if someone without Miriam’s specific medical skills would have a longer period of discovery or not. But this case is a green light to talk with a malpractice attorney, if you find yourself in a similar situation: and soon. A malpractice attorney with a history of these cases is usually in a good position to know about the current status of SOL…and how it relates to your community’s legal standards of care.
The highest court’s reasoning was both humanitarian and… legally sensible. “Unless these unfortunate patients learn of their injury and it’s cause before the limitation…they find themselves, through no fault of their own, without a remedy.” Maybe the North Carolina Supreme Court recognized that it wasn’t the duty of the Court of Appeals to weigh in on such an important policy issue. Maybe an issue this important should only be reversed at the Supreme Court level. Regardless, the outcome was an important victory for Miriam… and for showing the importance of medical malpractice attorneys in fighting for their clients’ medical protections and malpractice rights.
III. The Outer Limits: courts and legislatures are in control.
This case clearly had a fair result. The focus was shifted from an artificial calendar of when to bring a suit, based on the day of treatment or surgery. Instead, the time of reasonable discovery of the wrongful conduct of a medical practitioner is the proper trigger on starting a statute of limitations to run.
At the same time, it should never be taken for granted that state legislatures are going to be immune from pressures to change laws… to even overturn or limit court rulings on statutes of limitation that make perfect sense. North Carolina also has protections—outer limits—for doctors if too much time has gone by, even if someone has just discovered negligent treatment. This is another reason why it is so very important, in cases where it’s unclear what the cause of the medical injury has been, to seek the best possible medical malpractice attorney you can find.
This case involving Miriam was also very unique, because she worked in the medical field herself. While not everyone has her level of medical expertise, she is a good example of wisely seeking an expert trial attorney, experienced in medical malpractice suits. People who lack Miriam’s knowledge are encouraged to seek medical malpractice attorney advise, when unexplained conditions or possible injuries are present…as soon as possible.
So: we started this
blog with a question: is there a perfect time to start a lawsuit?
Hopefully, we reached a better understanding that this may not actually be a
simple question at all. The longer someone waits before talking to a
well-qualified trial attorney or medical malpractice lawyer, the higher potential
risk to a successful lawsuit. Or, as the North Carolina Supreme Court described
in this case above, it may be too late to prove someone “violated her rights.” Fortunately,
that didn’t happen in this case, but it took a real battle to protect the
woman’s rights. On the plus side, Miriam’s case (and her malpractice attorney)
have helped define the rights of a patient to be informed about all available
medical treatments. If you, a family member or a loved one
have been hurt in a medical treatment, surgery, or gotten questionable medical advice—or
have questions involving malpractice or your legal rights regarding the
timeliness of a suit, please contact us.
You will speak with a medical malpractice attorney who can best answer
your questions about how and when your case needs to be filed. There is never a fee for this initial
 Hysterectomies have been a lightning rod since the 1990s: with almost 50,000 performed annually in the US. A 2014 AMA study weighed in, citing new concerns that cancer risks may be increased by the procedure. https://www.nytimes.com/2014/07/23/science/uterine-cancer-hysterectomy.html
Additional Medical Malpractice Articles
Charlotte, NC Attorney Matthew Fleishman was recently interviewed by Fox 46 regarding potential HIPPA violations for sharing sensitive medical information with social media platforms. https://www.fox46.com/organization/novant-health/sensitive-medical-information-is-being-shared-to-social-media/
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